Reclaiming Title VII and the PDA: Prohibiting Workplace ...

RECLAIMING TITLE VII AND THE PDA:PROHIBITING WORKPLACEDISCRIMINATION AGAINSTBREASTFEEDING WOMEN

DIANA KASDAN*

A number of claims brought in federal courts across the United States docunentstories of working mothers who have encountered workplace discrimination di-rected at their breastfeeding status. Federal courts considering these claims uni-formly have agreed that sex discrimination based on breastfeeding is not actionableunder Title VII as amended by the Pregnancy Discrimination Act (PDA). In tisNote Diana Kasdan argues that this jurisprudence fails to consider the intent of thePDA and instead revives the flawed and rejected analysis of General Electric Co.v. Gilbert, which, prior to enactment of the PDA, wrongly held that discriminationdirected at a gender-specific condition such as pregnancy was not Title VII sex dis-crimination. In critiquing these cases, Kasdan suggests that they ignore the gender-specific nature of breastfeeding, thereby improperly foreclosing the application ofTitle VII to breastfeeding-based claims. Size argues that the statutory language, leg-islative inten and Supreme Court interpretation of the PDA support an interpreta-tion that includes breastfeeding within the scope of Title V1i's antidiscriminationprotections. Finally, Kasdan concludes that sucd an interpretation of the PDA isessential to preserving the integrity of Tile VII law and ensuring the advancementof women in the workforce and public life.

INTRODUCTION

More than twenty years ago, with the enactment of the PregnancyDiscrimination Act (PDA),' Congress clarified its intent that underTitle VII,2 workplace discrimination based on a biological conditionspecific to women, such as pregnancy, is the same as discrimination

* Special thanks to Professor Deborah A. Ellis for introducing me to the topic of this

Note and for her input and encouragement throughout. Thanks also to the editorial staffof the New York University Law Review, especially David N. Fagan, Shara E. Frase, andJeanne A. Fugate for their thoughtful comments and superb editing. Finally, thank you toJeff for comic relief and distraction.

1 Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555,92 Stat. 2076 (1978) (codi-fied as amended at 42 U.S.C. § 2000e(k) (1994)). The PDA amended Title VII of the CivilRights Act of 1964,42 U.S.C. §§ 2000e to e-13 (1994), by changing the definition of "sex"so that the "terms 'because of sex' or 'on the basis of sex' include, but are not limited to,because of or on the basis of pregnancy, childbirth, or related medical conditions." Id.§ 2000e(k); see also infra notes 72-82 (describing meaning and scope of PDA language).

2 Title VII prohibits employers from discriminating against employees on the basis ofrace, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.

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based on sex. 3 In so doing, Congress unequivocally rejected the hold-ing and logic of General Electric Co. v. Gilbert,4 which held that TitleVII did not protect against workplace discrimination based on preg-nancy.5 Despite this irrefutable directive from Congress, incredibly,courts have continued to rely on Gilbert when interpreting the PDA. 6The issue that seems to have confounded courts and revived the logicof Gilbert is whether Title VII, as amended by the PDA, prohibitsworkplace discrimination based on breastfeeding.7 While to date thisissue has arisen in a limited number of cases, it reveals a troublingjurisprudence: By reviving the flawed and rejected analysis ofGilbert,8 courts are hindering the legislative mandate to eliminate allforms of sex discrimination in the workplace. 9

The revival of a pre-PDA analysis of Title VII threatens to nar-row the scope of sex discrimination law and undo the progress madethus far. This is a disturbing prospect given the persistence of work-place discrimination against women.'0 Many employers and cowork-

3 See infra notes 144-50 and accompanying text (discussing scope of PDA as evidencedby congressional reports and Supreme Court interpretation); cf. Newport News Shipbuild-ing & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983) ("The Pregnancy DiscriminationAct has now made clear that, for all Title VII purposes, discrimination based on a woman'spregnancy is, on its face, discrimination because of her sex.").

4 429 U.S. 125 (1976). For a discussion of the congressional overruling of Gilbert, seeinfra Part II.B; infra note 69.

5 Gilbert, 429 U.S. at 145-46 (holding that "disability-benefits plan does not violateTitle VII because of its failure to cover pregnancy-related disabilities").

6 E.g., Martinez v. NBC Inc., 49 F. Supp. 2d 305, 309 (S.D.N.Y. 1999) (citing Gilbertfor its Title VII analysis); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky.1990) (noting PDA changed law after Gilbert but applying Gilbert logic to conclude thatPDA does not protect against discrimination based on breastfeeding), aff'd mem., 951 F.2d351 (6th Cir. 1991). For a description of the Gilbert analysis, see infra Part II.A, and asadopted by Martinez, see infra Part II.C.1.

7 Throughout this Note, the term "breastfeeding" encompasses any form of expellingmilk, such as breastfeeding or pumping.

8 See Newport News, 462 U.S. at 684 (holding that "Congress has unequivocally re-jected" reasoning of Gilbert "that an otherwise inclusive plan that singled out pregnancy-related benefits for exclusion was nondiscriminatory on its face, because only women canbecome pregnant"); see also Gilbert, 429 U.S. at 149 (Brennan, J., dissenting) ("Surely itoffends common sense to suggest... that a classification revolving around pregnancy isnot, at the minimum, strongly 'sex related."' (citation omitted)); infra Part II.B (discussinglegislative response to Gilbert).

9 See infra notes 140-43 and accompanying text (quoting Senate and House reports);see also infra notes 146-48 (discussing interpretations of PDA by Supreme Court).

10 For example, in fiscal year 1992, there were 21,796 sex-based claims filed with theEqual Employment Opportunity Commission (EEOC). Office of Research, Info., & Plan-ning, EEOC, Sex-Based Charges: FY 1992-FY 1999 (1999), http:llwwv.ecoc.govlstatslsex.html. By fiscal year 1999 that number had increased to 23,907. Id. While only a smallpercentage of cases reached an administrative determination of "reasonable cause," thepercentage that did almost doubled from 1992 to 1999. Id. (reporting that 3.4% of cases in1992 and 6.4% of cases in 1999 had reasonable cause). The discrepancy in pay between


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PREGNANCY DISCRIMINATION ACT

ers still tend to stereotype women as less capable professionals,especially when childbearing issues and biological differences empha-size the real and perceived differences between men and women."Thus, it is not surprising to find that women who are breastfeedinghave been singled out as targets of sex discrimination. For example,one employer subjected several female employees to adverse employ-ment actions and a litany of harassing remarks such as "[y]ou smelllike curdled milk," and "Jesus, Patty, your tits are huge!" 12 In anothercase, a casino employee claimed that upon returning to work aftertime off for breastfeeding, she was dismissed upon the pretext of anexpired license, despite the fact that it was company practice to allowemployees with expired licenses to stay on while awaiting renewal.13

In yet another case, a female employee alleged that male employeesstood outside the room where she was breast pumping and made of-fensive comments. 4 According to the court in that case, however, awork environment "hostile to breast pumping" was not sexdiscrimination. 15

men and women may further support the existence of persistent workplace discrimination.See Bureau of Labor Statistics, U.S. Dep't of Labor, Highlights of Women's Earnings in1998, at 1 (1999) (reporting that in 1998, women still only earned about seventy-six percentof that earned by men).

11 For instance, female employees are subject to comments such as: "Are you reallyserious about your career, or are you just going to go home and get pregnant?," Quaratinov. Tiffany & Co., 71 F.3d 58,61 (2d Cir. 1995), and "we are not a family oriented company,we are a business," Bond v. Sterling, Inc., 997 F. Supp. 306, 309 (N.D.N.Y. 1993). Evenwhen corporations offer family-friendly policies such as childcare, parental leave, or flex-time, research has shown that "in practice asking for these benefits is often taken as anadmission of inadequacy-a sign that women are unable to manage their work and familydemands... [and] women who took advantage of them were seen as less committed andless desirable." Rosalind C. Barnett, A New Work-Life Model for the Twenty-First Cen-tury, 562 Annals Am. Acad. Pol. & Soc. Sci. 143, 147 (1999); see also Leslie Bender, SexDiscrimination or Gender Inequality?, 57 Fordham L Rev. 941, 950-51 (1989) (arguingthat women's success in major law firms depends on their ability to "act and think mostlike the gendered male culture").

12 Donaldson v. Am. Banco Corp., 945 F. Supp. 1456, 1462 (D. Colo. 1996). This casealso demonstrates how pregnant women face discrimination in the terms of their employ-ment. The three plaintiffs were all subject to either involuntary termination or reduction inhours after becoming pregnant or giving birth. Id. at 1460.

13 Fejes v. Gilpin Adventures, Inc., 960 F. Supp. 1487, 1493-94 (D. Colo. 1997). Foradditional details of the Fejes case, see infra note 115 and accompanying text.

14 Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) (referring to allega-tions of "tasteless and offensive remarks directed at the fact that she was engaged in pump-ing breast milk"); Plaintiff's Memorandum in Opposition to Motion at 5, Martinez (No. 98Civ. 4842 (LAK)) [hereinafter Plaintiffs Memorandum].

15 Martinez, 49 F. Supp. 2d at 311 (reasoning that even "assuming the truth ofMartinez's allegations, [all that is left] is a work environment hostile to breast pumping, nota work environment that subjected women to treatment less favorable than was meted outto men"). For additional discussion of Martinez, see infra notes 102-07 and accompanyingtext.


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Most courts that have addressed this issue have agreed that sexdiscrimination based on breastfeeding status is not actionable underTitle VII.16 The disturbing logic emerging from the lower court hold-ings is that discriminatory distribution of benefits, harassment, demo-tions, or other adverse actions are permissible when employers directthis discrimination at the woman's breastfeeding status, not her "sex"generally. 17 Such a distinction between breastfeeding-based sex dis-crimination and other forms of sex discrimination ignores reality.Breastfeeding, like pregnancy and childbirth, is a biological, sex-basedcharacteristic that conflicts with traditional workplace expectations.18

Sex discrimination, whether based on pregnancy or breastfeeding,negatively distinguishes female employees because of their sex-spe-cific characteristics. In either case, such treatment keeps women outof the workforce longer, thereby hindering their career and economicadvancement. 19

This Note argues that, in contrast to the findings of lower courts,applying Title VII protections to women who have suffered sex dis-crimination based on their breastfeeding status is necessary, logical,and required under the PDA. Part I establishes the clear biologicalcauses and effects of breastfeeding, as well as its social context. PartII.A reviews the development of the Court's pregnancy discriminationanalysis in Gilbert and Part II.B discusses its statutory overruling bythe PDA. In light of this history, Part II.C analyzes the prevailingrationales among lower courts that have considered whether the PDAprohibits discrimination on the basis of breastfeeding and the detri-mental effect of these decisions. Drawing from the statutory lan-guage, legislative intent, and the Supreme Court's interpretation ofthe PDA, Part III critiques the prevailing rationales and suggests astraightforward approach by which advocates and courts can promotea proper interpretation of the PDA that includes breastfeeding withinthe scope of Title VII's protections.

16 See infra Part II.C for an analysis of how lower courts have responded to breastfeed-ing-based discrimination claims.

17 See infra Part II.C.1 (arguing that holdings in lower courts have revived logic ofGilbert).

18 See infra notes 40-43 (citing studies on women's maternity and employment choices).19 See infra notes 79-80 and accompanying text (relating conclusion in congressional

reports that sex stereotyping hinders women's advancement in workforce). For a discus-sion of the competition between breastfeeding and maternal employment, see Brian Roeet al., Is There Competition Between Breast-Feeding and Maternal Employment?, 36 De-mography 157 (1999).


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ITHE BIOLOGIcAL REALITY AND SocIA

CoNTExr OF BREASTFEEDING

Despite the assumptions of some courts, breastfeeding is not sim-ply a childcare choice independent of gender or pregnancy.2° The bio-logical causes and effects of lactation and subsequent breastfeeding,21

as well as the accompanying social context, illustrate how breastfeed-ing engenders various physical and social effects unique to women.

The ability to breastfeed follows from lactation, a process trig-gered by pregnancy and childbirth.22 This process results in numerousphysical sequelae. Lactation often causes discomforts such as hard-ness, swelling, and heaviness of the breast, as well as leakage of breastmilk. 3 A woman can end lactation and milk leakage by notbreastfeeding, but, if breastfeeding is chosen, leakage and control overthe feeding schedule can be difficult. 24 On the other hand, lactationand continued breastfeeding can provide significant physical benefits

20 See infra notes 98-99 and accompanying text for a discussion of courts that haveequated breastfeeding with childcare.

21 This Note recognizes that the act of breastfeeding extends the biological process oflactation, and that a woman could choose to prevent or stop lactation by not engaging in,or not continuing, breastfeeding. See Judith G. Greenberg, The Pregnancy DiscriminationAct: Legitimating Discrimination Against Pregnant Women in the Workforce, 50 Me. LRev. 225,230 n.29 (1998) (noting that lactation process can be artificially aborted, but thatcourts should not expect this as norm); but cf. Jendi B. Reiter, Accommodating Pregnancyand Breastfeeding in the Workplace: Beyond the Civil Rights Paradigm, 9 Tex. J. Women& L. 1, 8 (1999) (explaining that unless artificially terminated, "inability to relieve thebuild-up of milk" during lactation can cause great discomfort). However, this "choice"does not alter the sex-specific nature of breastfeeding or the corresponding Tide VII analy-sis. See infra notes 165-71 and accompanying text.

22 Donna J. Chapman & Rafael Pdrez-Escamilla, Identification of Risk Factors forDelayed Onset of Lactation, 99 J. Am. Dietetic Ass'n 450, 450 (1999) ("The human lacta-tion process progresses rapidly in pregnancy during lactogenesis stage I, in which the struc-tures of the mammary gland undergo preparation for milk production. At approximately 2to 3 days postpartum, lactogenesis stage II occurs and is marked by copious secretion ofbreast milk.").

23 Id. at 452 (describing "[b]reast hardness, breast fullnessfheaviness, breast swelling,and leakage of colostrum/breast milk").

24 See Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 WL 373790, at*4 (D. Or. Apr. 9,1999) (describing one occasion in which employer would not let plaintiff

go home to feed her son and "[s]he started leaking breast milk and was humiliated," anddescribing another occasion in which "she was forced to sit on the plane drenched in breastmilk" after employer refused plaintiff any breaks); Rebecca F. Black et a]., Lactation Spe-cialist Self-Study Series, Module 2: The Process of Breastfeeding 48 (1998) (recom-mending eight to twelve feedings during twenty-four-hour period, but noting thatnewborn's needs and feeding duration will vary among individual babies); Work Group onBreastfeeding, Am. Acad. of Pediatrics, Breastfeeding and the Use of Human Milk, 100Pediatrics 1035,1036 (1997) [hereinafter AAP] (advising that newborns "should be nursedwhenever they show signs of hunger").


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to women.25 The American Academy of Pediatrics (AAP) reportsthat breastfeeding may improve bone remineralization and reduceovarian and breast cancer in mothers.26 Additionally, continued lacta-tion controls postpartum bleeding2 7 and helps decrease menstrualblood loss for months after delivery.28

In addition to the physical impact breastfeeding has on women, itbrings with it significant social expectations and consequences.2 9 TheAmerican medical community strongly advocates the benefits ofbreastfeeding for both mothers and infants, and mothers are activelyencouraged to breastfeed for at least one year.3 0 The AAP's mostrecent policy statement notes that human milk is the "optimal form ofnutrition for infants," providing them with "general health, growth,and developmental" advantages.31 Further, it has found that"breastfeeding provides significant social and economic benefits to thenation, including reduced health care costs and reduced employee ab-senteeism for care attributable to child illness. '32 The social impact ofbreastfeeding is extremely significant given the high rate of womenand mothers in the workforce. Almost sixty percent of women in the

25 Isabelle Schallreuter Olson, Out of the Mouths of Babes: No Mother's Milk for U.S.Children: The Law and Breastfeeding, 19 Hamline L. Rev. 269, 271-74 (1995) (detailingextensive research on benefits of breastfeeding to mother and child); Corey SilbersteinShdaimah, Why Breastfeeding Is (Also) a Legal Issue, 10 Hastings Women's L.J. 409, 410-11 (1999) (same).

26 AAP, supra note 24, at 1035.27 Breastfeeding and Human Lactation 103 (Jan Riordan & Kathleen Auerbach eds., 2d

ed. 1999) [hereinafter Breastfeeding] (explaining that hormone oxytocin, which causes re-lease of milk, also contracts uterus and controls postpartum bleeding).

2S AAP, supra note 24, at 1035.29 For a discussion of why the feminist sociological agenda should focus more attention

on breastfeeding given the social consequences that it has on women's personal and publiclives, see Cindy A. Steams, Breastfeeding and the Good Maternal Body, 13 Gender &Soc'y 308 (1999). Steams studies the way women balance breastfeeding in response to"[t]he perceived need to hide breastfeeding... [which] effectively keeps some women athome and out of public life more than they would be otherwise." Id. at 323.

30 AAP, supra note 24, at 1037. The United States Department of Health and HumanServices, through its "Healthy People" initiative, has sought to increase the rate ofbreastfeeding in this country since 1984 when the Surgeon General convened a Workshopon Breastfeeding and Human Lactation. See Breastfeeding, supra note 27, at 18 (notingseventy-five percent breastfeeding rate as year 2000 goal). The new Healthy People 2010initiative is still working toward a seventy-five percent rate for postpartum breastfeeding,fifty-percent rate at six months, and twenty-five percent at one year. See 2 U.S. Dep't ofHealth & Human Servs., Healthy People 2010 § 16-19 (2d ed. 2000), http://www.health.gov/healthypeople/Document/HTMLVolume2/16MICH.htm. While improvements have beenmade, the Department of Health and Human Services advises that success in reaching thisgoal will require greater "social support, including support from employers." Id.

31 AAP, supra note 24, at 1035.32 Id.


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United States are employed,33 and they constitute forty-six percent ofthe entire civilian workforce?34 Notably, over half of those womenwith children under age one are employed3 5

Reflecting the benefits that the AAP and other advocates ofbreastfeeding have identified,36 the federal government has madebreastfeeding a national health objective 3 7 Programs designed toteach and assist new mothers in breastfeeding,3 as well as the exis-

33 According to 1998 statistics from the United States Department of Labor, 59.8% ofwomen age sixteen and over are employed. Twenty Facts on Women Workers, in Facts onWorking Women (Women's Bureau, U.S. Dep't of Labor), Mar. 2000, Fact 2, http'//www.dol.gov/dollwbfpubliclwb-pubstfact98.htm [hereinafter Women's Bureau]. The em-ployment rate is significantly higher, around seventy-five percent, for women between agestwenty and fifty-four. Id.

34 Id. Fact 4.35 Women with infants under the age of one are employed at a rate of 53.6%. Bureau

of Labor Statistics, U.S. Dep't of Labor, Employment of Mothers with Infants, MonthlyLabor Review- The Editor's Desk (June 8,1999), available at httpJl/www.bls.gov/opubted!1999/jun/wk2/art02.htm; see also Twenty Facts on Women Workers, supra note 33, Fact 6(reporting that 60.7% of women with children under age three are employed). Not surpris-ingly, fathers with children under age six continue to work at a much higher rate (96.1%)than mothers with children under age six (64.9%). Bureau of Labor Statistics, U.S. Dep'tof Labor, Labor Force Participation of Fathers and Mothers Varies with Children's Ages,Monthly Labor Review- The Editor's Desk (June 3,1999), available at http'//%vwAv.bls.gov/opub/ted/1999junwklartO3.htm.

36 One of the oldest and most well-known breastfeeding advocacy groups is La LecheLeague, founded in 1956. La Leche League International (LLLI), at http:/1www.lalecheleague.org (last modified Oct. 18,2000). Today, numerous breastfeeding orga-nizations, professional groups, and other health organizations advocate for greater educa-tion, acceptance, and use of breastfeeding. See, e.g., Am. Coll. of Nurse-Midwives,Breastfeeding, at http'//www.aenm.orglproflbreast.htm (July 27, 1992) (posting positionstatement encouraging educational programs, public policies, and workplace practices thatsupport breastfeeding); Child Health and Development (CHD), World Health Org.(WHO), at http.//www.who.int/chd (last visited Oct. 21, 2000) (suggesting six months ofexclusive breastfeeding as WHO and UNICEF guidelines); Coalition for Improving Mater-nity Servs. (CIMS), at http-/www.motherfriendly.org (last visited Oct. 21, 2000) (identify-ing coalition, including LLLI and lactation professionals, that identifies mother-friendlyand baby-friendly birthing services); International Lactation Consultant Association(ILCA), at http'i/www.ilca.org (last modified Oct. 14,2000) (detailing professional associa-tion that promotes development and advancement of lactation consultants); National Alli-ance for Breastfeeding Advocacy (NABA), at http'/hometown.aol.comfmarshalact/Nabalhome.html (last visited Oct. 21, 2000) (working to promote breastfeeding as public healthissue through lobbying, monitoring, advocacy development, and coalition building); WorldAlliance for Breastfeeding Action (VABA), at http:/www.waba.org.br (last visited Oct.21, 2000) (organizing, in conjunction with UNICEF, annual week long events to generatepublic awareness and support of breastfeeding).

37 See supra note 30 (describing Department of Health and Human Services goals forimproving rate of breastfeeding).

38 See Shdaimah, supra note 25, at 430-35 (discussing congressional effort to educatelow-income women on breastfeeding through federal nutritional program for "Women, In-fants, and Children"); supra note 36 (listing numerous advocacy organizations that provideeducation and training).


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tence of supportive state legislation,39 evidence a nationwide effort toencourage new mothers to breastfeed.

Still, women who attempt to continue breastfeeding while main-taining employment often encounter significant impediments that areat odds with the stated public policy of promoting breastfeeding.4 0

For many women this conflict forces a choice between breastfeedingand work. A recent study on competition between breastfeeding andmaternal employment revealed that most working mothers are con-cerned primarily with sustaining employment and adjust the frequencyand duration of breastfeeding to accommodate that goal.41 As a re-suit, breastfeeding often ends considerably sooner than is recom-mended.42 However, among those women who consciously developstrategies to balance breastfeeding and work simultaneously,breastfeeding duration increases.43 Workplace discrimination againstbreastfeeding women threatens to negate this hard-earned balanceand likely will discourage more women from attempting to continuebreastfeeding while working. As will be discussed in Part III, TitleVII provides a framework that can help reduce this threat by prohibit-ing discrimination against breastfeeding employees.44

39 See, e.g., Ga. Code Ann. § 34-1-6 (Supp. 2000) (encouraging employers to providebreaks for women to express breast milk for infant children); Haw. Rev. Stat. § 378-10.2(1999) (forbidding employers to prohibit employees from expressing breastmilk duringmeal or break periods); N.M. Stat. Ann. § 28-20-1 (Michie 2000) (declaring "[r]ight tobreastfeed" in any public or private place where mother is authorized to be present); Tenn.Code Ann. § 50-1-305 (1999) (requiring employers to provide "reasonable unpaid breaktime" and "make reasonable efforts" to provide rooms for expressing breast milk). For amore detailed discussion of state legislation pertaining to breastfeeding, see Reiter, supranote 21, at 22-27.

40 The Steams study reports findings on how mothers attempt to negotiate discreetlybreastfeeding in public places. Steams, supra note 29, at 312-16. For example, Steamsfound that work presented an institutional setting in which some women felt breastfeedingwas never appropriate. Id. at 315; see also Breastfeeding, supra note 27, at 22-23 (notingthat despite efforts to promote breastfeeding, social approval and acceptance are stilllacking).

41 Roe et al., supra note 19, at 158 ("[W]orking mothers will make decisions aboutemployment first, and then structure the infant-feeding decision around work con-straints."). Contrary to the researchers' expectations, the study discovered that "durationof breast-feeding is not a statistically significant determinant of work-leave duration." Id.at 164.

42 Compare Roe et al., supra note 19, at 159 (reporting that working women in studybreastfed for average of 21.53 weeks), with AAP, supra note 24, at 1037 (recommendingone year minimum of breastfeeding).

43 Roe et al., supra note 19, at 166 (noting that "the negative effect of market work onbreast-feeding duration dissipates" if women aim to balance both objectives rather thanprioritizing work schedules).

44 State laws provide another avenue for protection against this type of discrimination,and in some states they may provide greater protection than Title VII. See supra note 39(citing state breastfeeding statutes and article discussing state laws). This Note, however, islimited to an analysis of federal rights and protections provided by Title VII.


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IIFROM GILBERT TO THE PDA AND BACK AGAIN:

TITLE VII SEx DISCRIMINATION As DEFINEDBY CONGRESS AND THE CoURTS

In 1976, the Supreme Court held in General Electric Co. v.Gilbert4 5 that discrimination against pregnant women is not sex dis-crimination under Title VII.46 Congress emphatically disagreed. Justtwo years after Gilbert was decided, Congress passed the PDA, whicheffectively overruled the Gilbert holding and rationale.47 Parts H.Aand II.B briefly introduce the premise of sex discrimination law underTitle VII, outline the Court's position in Gilbert on pregnancy discrim-ination, and explain how and why Congress rejected that position byenacting the PDA. From the perspective of this framework, Part II.Canalyzes how lower courts erroneously have interpreted the PDAwhen deciding cases of breastfeeding-based sex discrimination.

A. Title VII and the Gilbert Analysis

By the time the PDA was adopted, Title VII already had been inplace for almost fifteen years. Since 1964, Title VII had provided afederal source of rights and remedies against various forms of work-place discrimination so as to open the mainstream job market to allindividuals, regardless of race, national origin, religion, or sex.48

Through extensive litigation, the understanding of what constitutessex discrimination has developed substantially, and three general the-ories of sex discrimination under Title VII have evolved: facial dis-crimination,49 disparate treatment5o (which includes sexual

45 429 U.S. 125 (1976).46 Id. at 145-56.47 See supra notes 1-5 and accompanying text (discussing Title VII as affected by

Gilbert decision and subsequent amendment through PDA); infra notes 69-71 and accom-panying text (discussing speedy reaction by Congress to reverse effect of Gilbert).

48 See Developments in the Law-Employment Discrimination and 'Title VII of theCivil Rights Act of 1964, 84 Harv. L Rev. 1109, 1166-67 (1971) (discussing original pur-poses and concepts underlying Title VII).

49 Facial discrimination occurs when an employment policy is based explicitly on sex.See City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702,714-18 (1978) (holdingthat it is prima facie sex discrimination to require that female employees contribute moremoney to pension fund than male employees); Phillips v. Martin Marietta Corp., 400 U.S.542, 544 (1971) (per curiam) (holding that, absent exception for bona fide occupationalqualification, it is prima facie sex discrimination for employer to have one hiring policy forwomen with preschool-aged children and another for men with preschool-aged children).

50 In cases of disparate treatment, there is not an explicit sex-based policy, but theplaintiff alleges differential treatment "because of" or "based on" sex. The model for suchclaims is the same as that for disparate treatment based on race, as set out in McDonnellDouglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas test, a plain-tiff may establish a prima fade case of race discrimination


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harassment5'), and disparate impact.52 Applying these frameworks toTitle VII as amended by the PDA, women can raise claims of sex dis-crimination if they encounter policies explicitly based on pregnancy,disparate treatment-including harassment-based on pregnancy, orif pregnant employees suffer a disparate impact from neutral policies.

Before Congress enacted the PDA, the plaintiffs in Gilbert askedthe Supreme Court to find that, under Title VII, a policy explicitlydistinguishing benefits on the basis of pregnancy was facially discrimi-natory, or alternatively, that it had a disparate impact on women.5 3

by showing (i) that he belongs to a racial minority; (ii) that he applied and wasqualified for a job for which the employer was seeking applicants; (iii) that,despite his qualifications, he was rejected; and (iv) that, after his rejection, theposition remained open and the employer continued to seek applicants frompersons with complainant's qualifications.

Id. at 802; see also Johnson v. Transp. Agency, 480 U.S. 616 (1987) (applying framework setforth in McDonnell Douglas to claim of discrimination based on sex, in context of affirma-tive action plan). This same prima facie approach applies in cases where an employee facesdiscrimination in other terms of employment, including, for example, promotions, job as-signments, and transfers. See generally Daniel M. Le Vay, Annotation, Sex Discriminationin Job Assignment or Transfer as Violation of Title VII of Civil Rights Act of 1964 (42U.S.C.S. §§ 2000e et seq.), 123 A.L.R. Fed. 1 (1995) (citing and describing numerous casesfinding sex discrimination in terms of employment after initial hiring).

51 Although it took longer to develop the theory that sexual harassment that creates ahostile work environment is sex discrimination, it is now firmly recognized as a form ofdiscriminatory treatment based on sex under Title VII. Sexual Harassment, 29 C.F.R.§ 1604.11(a) (2000) ("Harassment on the basis of sex is a violation of... title VII."); seeFaragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (establishing that employer issubject to vicarious liability to employee when supervisor creates hostile work environ-ment because of sex); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (statingthat both quid pro quo and hostile environment claims are cognizable and actionableunder Title VII); Meritor Say. Bank v. Vinson, 477 U.S. 57, 64 (1986) ("Without question,when a supervisor sexually harasses a subordinate because of the subordinate's sex, thatsupervisor 'discriminate[s]' on the basis of sex."). See generally Beverly Johnson, SexualHarassment on the Job, in 33 Am. Jur. Trials 257, 270-83 (1986 & Supp. 1999) (detailingvarious theories and standards of proof for sexual harassment claims under Title VII).

52 Disparate impact claims seek to demonstrate that a facially neutral policy has a dis-proportionately negative impact on one sex. The burden of proof for disparate impactclaims was added to Title VII in 1991. Civil Rights Act of 1991, Pub. L. No. 102-166,§ 105(a), 105 Stat. 1071, 1074 (1991) (codified at 42 U.S.C. § 2000e-2(k)) (requiring plain-tiff to demonstrate that each challenged employment practice has disparate impact andallowing respondent to defend such practices by proving that they are business necessity).The Supreme Court first recognized this theory of discrimination in the context of racediscrimination. Griggs v. Duke Power Co., 401 U.S. 424, 430-32 (1971) (holding that TitleVII forbids employment practice that is neutral on face if it preserves status quo of priordiscrimination or operates to exclude minorities, regardless of intent). The Court thenapplied it to a claim of sex discrimination in Dothard v. Rawlinson, 433 U.S. 321, 332-34(1977) (noting that Title VII is violated if facially neutral employment standards createsignificantly discriminatory hiring pattern with disproportionate negative effect on women,but holding that specific facts of case created allowable exception for bona fide occupa-tional qualification).

53 Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 136-37 (1976).


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The Court flatly refused to do so.M This, however, was not the firsttime the Supreme Court had declined to recognize pregnancy discrim-ination as a form of sex discrimination.

The basis for the Court's reasoning in Gilbert was laid down twoyears earlier in Geduldig v. Aiello.55 In Geduldig, the Court consid-ered whether pregnancy discrimination violated federal constitutionalprotections against sex discrimination. Workers sued the state for ex-cluding pregnancy and related medical disabilities from coverageunder California's mandatory state disability compensation pro-gram.5 6 Under a Fourteenth Amendment equal protection analysis,the Court held that the plan's exclusion of pregnancy disabilities wasconstitutionally valid because "[t]here is no risk from which men areprotected and women are not. Likewise, there is no risk from whichwomen are protected and men are not."5T However, as the dissentnoted, men received full compensation for several sex-related condi-tions, such as prostatectomies and circumcisions, while medical needsresulting from pregnancy were excluded.58 The dissent aptly revealedthe faulty basis of the majority's conclusion which had disregarded thefact that the singular area of benefits exclusion was for a conditionspecific to women.

The Court rationalized that the pregnancy exclusion was notbased on gender because pregnancy is a physical condition that onlysome women experience.5 9 From this rationale, the Court concludedthat dividing "potential recipients into two groups-pregnant womenand nonpregnant persons," was not gender-based discrimination be-cause the latter group includes members of both sexes.60 In otherwords, only the subgroup of women who became pregnant riskedmedical disability without coverage, whereas women avoiding preg-nancy could enjoy coverage on par with men.

Geduldig established the principle that discrimination againstwomen on the basis of avoidable, gender-based conditions, such aspregnancy, is not sex discrimination under the Fourteenth Amend-ment. Despite this restrictive constitutional definition of sex discrimi-nation, appellate courts deciding Title VII discrimination claims post-Geduldig interpreted the statutory definition of sex discrimination to

54 Id. at 145-46; see also infra notes 62-68 and accompanying text (discussing SupremeCourt analysis in Gilbert).

55 417 U.S. 484 (1974).56 Id. at 486.57 Id. at 496-97.58 Id. at 501 (Brennan, J., dissenting).59 Id. at 496-97 n.20 (rationalizing that plan "merely remove[d] one physical condi-

tion-pregnancy-from the list of compensable disabilities").60 Id. at 497 n.20.


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include gender-based characteristics, such as pregnancy.61 Nonethe-less, with Gilbert, the Supreme Court rejected this body of Title VIIjurisprudence and erroneously extended its equal protection analysisto Title VII.62

In Gilbert, several female employees who were denied medicalbenefits for disabilities arising from their pregnancies sued their em-ployer for violating Title VII.63 Noting the similarity between lan-guage in Title VII and its equal protection decisions, as well as thelack of persuasive legislative history, the Court concluded that the rea-soning in Geduldig was applicable to an interpretation of sex discrimi-nation under Title VIIL6a Without further considering congressionalintent or policy, the Court applied the Geduldig rule and held thatexcluding pregnancy benefits from a medical coverage plan was not "amere 'pretext[ ] designed to effect an invidious discrimination againstthe members of one sex or the other."' 65

In contrast to the majority opinion, strong dissents by several Jus-tices established a more practical understanding of sex discrimination.

61 E.g., Satty v. Nashville Gas Co., 522 F.2d 850,854 (6th Cir. 1975) (holding that dispa-rate treatment of pregnancy leave compared to other sick leave is violation of Title VII),vacated in part in light of Gilbert, 434 U.S. 136 (1977); Hutchison v. Lake Oswego Sch.Dist. No. 7, 519 F.2d 961, 965 (9th Cir. 1975) (holding that exclusion of pregnancy-relateddisabilities from sick leave coverage is Title VII violation), vacated in light of Gilbert, 429U.S. 1033 (1977); Gilbert v. Gen. Elec. Co., 519 F.2d 661, 667 (4th Cir. 1975) (holding thatdenial of pregnancy-related disabilities under employer benefit program falls "clearlywithin the prohibitions of Title VII"), rev'd, 429 U.S. 125 (1976); Tyler v. Vickery, 517 F.2d1089, 1098 (5th Cir. 1975) (citing with approval rationale in other circuits that found preg-nancy-based discrimination is sex discrimination under Title VII, even if not under Consti-tution); Communications Workers of Am. v. AT&T Co., 513 F.2d 1024, 1031 (2d Cir. 1975)(holding that decision in Geduldig does not bar pregnancy discrimination claim under TitleVII), vacated in light of Gilbert, 429 U.S. 1033 (1977); Wetzel v. Liberty Mut. Ins. Co., 511F.2d 199, 205-06 (3d Cir. 1975) (holding it discriminatory to treat disability due to preg-nancy differently from other temporary disabilities), vacated on jurisdictional grounds, 424U.S. 737 (1976).

62 Compare Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974) (reasoning that State's le-gitimate, noninvidious financial objective for excluding pregnancy conditions from disabil-ity program did not violate Equal Protection Clause of Fourteenth Amendment), withGen. Elec. Co. v. Gilbert, 429 U.S. 125, 136 (1976) (concluding that reasoning of Geduldigwas "precisely in point" for analysis of Title VII claim at issue). But as the Supreme Courtnoted after the enactment of the PDA, "in evaluating the constitutionality of California'sinsurance program, the [Geduldig] Court focused on the 'non-invidious' character of theState's legitimate fiscal interest . . This justification was not relevant to the statutoryissue presented in Gilbert." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462U.S. 669, 677 n.13 (1983) (citation omitted).

63 Gilbert, 429 U.S. at 128-29. The women who brought the suit represented a class ofwomen employees who similarly had been denied benefits. Id. at 127 n.2.

64 Id. at 133, 141-45 (finding that Court's equal protection cases were useful startingpoint while EEOC guidelines were not sufficiently persuasive).

65 Id. at 136 (quoting Geduldig, 417 U.S. at 496-97 n.20). The Court also held that thepolicy did not have a disparate impact on women. Id. at 137.


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Justice Brennan, with whom Justice Marshall concurred, made thesimple and sensible statement that "it offends common sense to sug-gest... that a classification revolving around pregnancy is not, at theminimum, strongly 'sex related."' 66 In a separate dissent, JusticeStevens similarly noted that "[b]y definition, such a rule discriminateson account of sex; for it is the capacity to become pregnant whichprimarily differentiates the female from the male."67 These dissentingviews proved extremely prescient and ultimately were adopted byCongress.6

B. Title VII as Amended by the Pregnancy Discrimination Act

Just three months after the Gilbert decision, Congress movedswiftly and deliberately to invalidate the rule established by the Su-preme Court.69 With the introduction of the PDA, Congress sought to"change the definition of sex discrimination in Title VII to reflect the'commonsense' view and to insure that working women are protectedagainst all forms of employment discrimination based on sex." 70 Bycalling on the commonsense understanding of sex discrimination,Congress rejected the more rigorous constitutional standard estab-lished by the Supreme Court.71

Congress framed the PDA as a definitional amendment to TitleVII that expanded the statutory language defining sex discrimination.As amended by the PDA, under Title VII of the Civil Rights Act of1964 "[t]he terms 'because of sex' or 'on the basis of sex' include, butare not limited to, because of or on the basis of pregnancy, childbirth,or related medical conditions." 72 In redefining sex discrimination, the

66 Id. at 149 (Brennan, J., dissenting) (citation omitted).67 Id. at 161-62 (Stevens, J., dissenting).68 The Senate Report on the PDA directly quoted Justice Brennan and Justice Stevens

when it declared that the dissenting opinions "correctly express both the principle and themeaning of title VII." S. Rep. No. 95-331, at 2-3 (1977); accord Newport News Shipbuild-ing & Dry Dock Co. v. EEOC, 462 U.S. 669, 677-78 (1983) (citing approvingly dissenters'analysis in Gilbert and quoting Senate Report's express approval of dissenting Justices'interpretation of Title VII).

69 Gilbert was decided on December 7, 1976, and the PDA was introduced in the Sen-ate on March 15, 1977, S. Rep. No. 95-331, at 3. Congressional intent to overrule Gilbertwas recognized by the Supreme Court in its first PDA case. Newport News, 462 U.S. at676, 678 (holding that Congress "not only overturned the specific holding in ... Gilbert,but also rejected the test of discrimination employed" in that case and reasoning that Con-gress "unambiguously expressed its disapproval of both the holding and reasoning of theCourt in the Gilbert decision" (citation omitted)).

70 S. Rep. No. 95-331, at 3.71 See Newport News, 462 U.S. at 679 (citing legislative history for proposition that

"amending legislation was necessary to re-establish the principles of Tftle VII lav as theyhad been understood prior to the Gilbert decision").

72 42 U.S.C. § 2000e(k) (1994).


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amendment also specifies that employers must treat "women affectedby pregnancy. the same for all employment-related purposes" asthey treat other persons similar in their capacity to work. 73

By adding a statutory definition of sex, Congress did not add newrequirements for employment practices or benefits, but rather it clari-fied the scope of existing prohibitions against sex discrimination inemployment.74 As a result, the PDA applies to all Title VII provisionsregarding unlawful employment practices based on sex7s and is notrestricted to any one particular employment practice described withinthe PDA itself.76 Given the amendment's pervasive alteration of TitleVII, Gilbert should not have been persuasive or controlling for subse-quent Title VII analysis.77

In addition to creating a statutory amendment that overruled theholding of Gilbert, Congress forthrightly stated the policy reasons be-hind its rejection of the Court's analysis. The Senate declared that itdisagreed with the Court's decision, which "threaten[ed] to underminethe central purpose of the sex discrimination prohibitions of Title

73 The second clause of § 2000e(k) reads in full:[Women affected by pregnancy, childbirth, or related medical conditions shallbe treated the same for all employment-related purposes, including receipt ofbenefits under fringe benefit programs, as other persons not so affected butsimilar in their ability or inability to work, and nothing in section 2000e-2(h) ofthis title shall be interpreted to permit otherwise.

Id.74 The House Report states:

We recognize that enactment of H.R. 6075 will reflect no new legislative man-date of the Congress nor effect changes in practices, costs, or benefits beyondthose intended by Title VII of the Civil Rights Act. On the contrary, the nar-row approach utilized by the bill is to eradicate confusion by expressly broad-ening the definition of sex discrimination in Title VII to include pregnancy-based discrimination.

H.R. Rep. No. 95-948, at 3-4 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4751-52; see alsoNewport News, 462 U.S. at 681 n.20 (citing Senate Report for proposition that PDA wasintended to clarify definition of sex while preserving existing Title VII principles).

75 For example, under 42 U.S.C. § 2000e-2(a), it is an "unlawful employment practicefor an employer... to fail or refuse to hire or to discharge any individual, or otherwise todiscriminate against any individual with respect to his compensation, terms, conditions, orprivileges of employment, because of such individual's race, color, religion, sex, or nationalorigin." A proper reading of this language, in light of § 2000e(k), includes the term preg-nancy as part of the term sex.

76 As explained by the Supreme Court, the second clause of the PDA, which is specificto medical benefits, is not a "limitation on the remedial purpose of the PDA," but rather itis an illustration directed at overruling Gilbert. Cal. Fed. Say. & Loan Ass'n v. Guerra, 479U.S. 272, 285 (1987); see also Newport News, 462 U.S. at 679 (noting that Act does nothave scope limited to "the specific problem that motivated its enactment").

77 See Guerra, 479 U.S. at 284-85 (citing Newport News for "well established" principlethat Congress enacted PDA as reaction to and overruling of Gilbert); see also supra notes68-71 and accompanying text (discussing accepted view that PDA overruled Gilbert).


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VII."7 8 In contrast to the Court's application of a narrow constitu-tional analysis to Title VII, Congress insisted that the statutory lawshould provide greater protection against discrimination as a neces-sary step toward women's advancement and equality in societyY9

Congress realized that prohibiting pregnancy discrimination was es-sential to eliminating societal assumptions that childbearing womenlack a commitment to their careers.80 Without this amendment, Con-gress feared it could not successfully eliminate sex discrimination inthe workplace.81

C. The Current Jurisprudence: How Lower Courts Have Analyzedthe PDA and Claims of Breastfeeding-Based Discrimination

The Supreme Court has relied on the language and explicit policygoals voiced throughout the legislative history of the PDA to interpretTitle VII broadly, rather than strictly limiting the impact of the PDAto pregnant women.82 In contrast to this precedent, a line of cases

78'S. Rep. No. 95-331, at 3 (1977); see also supra notes 48-52 and accompanying text(discussing purpose of Title VII generally).

79 As bill sponsor Senator Williams concluded during his remarks, "this legislation re-stores to our working women a very basic and fundamental protection against sex discrimi-nation, one which we intended to provide them when title VII was enacted." 123 Cong.Rec. 29,387 (1977); see also 123 Cong. Rec. 29,663 (1977) (statement of Sen. Cranston, co-sponsor) ("Mhis legislation will represent a significant step forward for working womenand their families... to assure equality of employment opportunity and to eliminate thosediscriminatory practices which pose barriers to working women in their struggle to secureequality in the workplace."); 123 Cong. Rec. 29,388 (1977) (statement of Sen. Kennedy)(emphasizing high numbers of women in workforce and economic necessity of ensuringtheir equal treatment); 123 Cong. Rec. 29,387 (1977) (statement of Sen. Javits) (describingenactment of PDA as "vital social policy").

The floor debate in the House provides similar commentary. E.g., 124 Cong. Rec.21,442 (1978) (statement of Rep. Tsongas) (stating:.

[The PDA] would go a long way toward assuring women equality in the jobmarket. It would assure that women who work either out of choice or neces-sity are not penalized for having a family. It would also put an end to anunrealistic and unfair system that forces women to choose between family andcareer--clearly a function of sex bias in the law, which no longer reflects theconditions of women in our society.);

124 Cong. Rec. 21,435 (1978) (statement of Rep. Hawkins) ("[G]enuine equality in theAmerican labor force is no more than an illusion as long as employers remain free to makepregnancy the basis of unfavorable treatment of working women.").

80 See S. Rep. No. 95-331, at 3 ("[The assumption that women will become pregnantand leave the labor market is at the core of the sex stereotyping resulting in unfavorabledisparate treatment of women in the workplace.").

81 Id. ("A failure to address discrimination based on pregnancy, in fringe benefits or inany other employment practice, would prevent the elimination of sex discrimination inemployment.").

82 See UAW v. Johnson Controls, Inc., 499 U.S. 187,205,211 (1991) (relying on legisla-tive history and holding that Title VII, as amended, forbids "sex-specific fetal.protectionpolicies" because it is based on women's "capacity" to become pregnant); Newport News


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dealing with breastfeeding-based sex discrimination indicates a trendtoward a more restrictive interpretation of sex discrimination underTitle VII. Uniformly, these cases have held that breastfeeding-basedsex discrimination is not within the meaning of Title VII as amendedby the PDA. As this Section will reveal, contrary to engaging in ameaningful and accurate interpretation of Title VII, these cases haverevived the logic of Gilbert, confused the issue of discrimination withthat of accommodation, and ultimately precluded effective recoursefor breastfeeding women.

1. Reviving the Logic of Gilbert

While only two jurisdictions have appellate level decisions onbreastfeeding-based sex discrimination claims,83 these precedentshave become the foundation for a line of cases in several lowercourts.84 The appellate court rationales for rejecting breastfeeding-based claims thus have been carried across several jurisdictions andhave established a prevailing approach to this question of law, withlogic reminiscent of Gilbert.

In the Fourth Circuit, two cases, Barrash v. Bowen 85 and Notter v.North Hand Protection,86 taken together, stand for the propositionthat because "breastfeeding is not a medical condition related to preg-nancy or to childbirth, '87 it does not come within the meaning of thePDA.88 With this rule, these cases deny Title VII protection frombreastfeeding-based discrimination, just as the Supreme Court had de-nied such protection from pregnancy related discrimination.

In Barrash, the Fourth Circuit, in dicta, rejected a disparate im-pact breastfeeding-based sex discrimination claim, reasoning that thePDA only covers pregnancy and related conditions that, unlike

Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983) (applying Title VII, asamended by PDA, to male employees). The Supreme Court also has held that Title VII, asamended by the PDA, does not prohibit preferential treatment of pregnant workers. In soholding, it reasoned that the purpose of Title VII in achieving equality in employmenttakes into account the realities of "social context." Cal. Fed. Say. & Loan Ass'n v. Guerra,479 U.S. 272, 288-90 (1987). This reliance on legislative history is markedly different fromthe Court's position in Gilbert, see supra notes 64-65 and accompanying text, thus indicat-ing the PDA's legislative history as an important development in Title VII interpretation.

83 Notter v. N. Hand Prot., No. 95-1087, 1996 WL 342008 (4th Cir. June 21, 1996);Wallace v. Pyro Mining Co., No. 90-6249, 1991 WL 270823 (6th Cir. Dec. 19,1991); Barrashv. Bowen, 846 F.2d 927 (4th Cir. 1988).

84 See infra notes 94, 99 (citing cases that adopted rationales originating in Fourth andSixth Circuits).

85 846 F.2d 927 (4th Cir. 1988).86 No. 95-1087, 1996 WL 342008 (4th Cir. June 21, 1996).87 Id. at *5.88 See infra notes 89-92 and accompanying text (analyzing progression of "medical con-

ditions" rule from Barrash to Notter).


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breastfeeding, are "incapacitating." 89 In Notter, a nonbreastfeedingcase, the same court again considered whether the PDA only coversincapacity related to pregnancy.90 The court admitted that the PDAdid not require incapacitation and accordingly acknowledged that theBarrash interpretation of the PDA was partially incorrect.91 How-ever, Notter failed to remedy sufficiently the flawed analysis ofBarrash for two reasons. First, it let stand the misconception that thePDA permits discrimination against nonmedical conditions of preg-nancy, such as breastfeeding.92 Second, Notter carried minimal impactand authority since it was an unpublished decision that was handeddown eight years after Barrash was decided. By the time Notter wasdecided, other jurisdictions already had adopted the Barrash dicta.93

Moreover, even after Notter was decided, other jurisdictions consider-ing breastfeeding-based claims continued to cite and adopt theBarrash dicta without consideration of the Notter limitation.9 4

In Wallace v. Pyro Mining Co.,9s the Sixth Circuit adopted andexpanded the rationale developed in Barrash and reaffirmed inNotter. The district court explicitly adopted the Barrash medical con-

89 846 F.2d at 931. The Barrash court actually held that, because the plaintiff had set-tled her claim of wrongfully denied maternity leave through a union grievance process, itwas not properly before the court as a Title VII claim. Nonetheless, the court went on tostate its interpretation of the PDA as requiring a showing of incapacitation and noted that,since the plaintiff had not shown incapacitation, she still would have failed to raise a TitleVII claim. Id. at 930.

90 In Notter, the plaintiff claimed disparate treatment by her employer because she wasfired after taking medical leave to recover from a caesarian. Notter, 1996 WL 342003, at*3-*4. The defendant argued that because the plaintiff's condition was not incapacitating,under Barrash, she had failed to establish that she was protected by the PDA. Id. at *4-*5.

91 Id. (describing requirement of incapacity in Barrash as made in dicta and withoutany citation to authority).

92 See id. (clarifying that "Barrash stands for the narrow proposition that breastfeedingis not a medical condition related to pregnancy or to childbirth" for purpose of PDA analy-sis). For the argument that nonmedical conditions of pregnancy are protected under thePDA, see infra Part N.A.

93 For example, before Notter was decided, a district court in the Sixth Circuit adoptedthe Barrash dicta. Wallace v. Pyro Mining Co., 789 F. Supp. 867,868 (V.D. Ky. 1990), aff'dmem., 951 F.2d 351 (6th Cir. 1991). The rationale and holding were affirmed by the SixthCircuit Court of Appeals, Wallace v. Pyro Mining Co., No. 90-6249, 1991 WL 270823 (6thCir. Dec. 19, 1991), and then followed outside of the Sixth Circuit, e.g., Barnes v. Hewlett-Packard Co., 846 F. Supp. 442, 445 (D. Md. 1994) (quoting "incapacitating conditions"language from Wallace, which in turn had cited Barrash for support of this interpretation).

94 E.g., Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487,1492 (D. Colo. 1997) (decidedafter Notter but citing Barrash); McNill v. N.Y. City Dep't of Corr., 950 F. Supp. 564,571(S.D.N.Y. 1996) (same).

95 No. 90-6249, 1991 WL 270823 (6th Cir. Dec. 19, 1991). In Wallace, the plaintiff didnot clarify whether her claim raised the issue of disparate treatment or disparate impact.Wallace, 789 F. Supp. at 868. Ultimately, the form of her claim was irrelevant since thecourt held that a breastfeeding person simply was not within the class of persons protectedby the PDA. Id. at 868-69.


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dition rationale in refusing to apply the PDA to the plaintiff's claim.96

The court of appeals affirmed, holding that because the plaintiff couldnot establish that breastfeeding was a medical necessity, the PDA didnot apply.97

Lack of medical necessity, however, was not the sole rationaleunderlying the lower court holding. In its opinion, the district courtequated breastfeeding with childcare and held that Title VII, asamended by the PDA, did not make it illegal for an employer to denypersonal leave to a female worker who requested time off for child-care concerns such as breastfeeding. 98 Under the Wallace analysis,breastfeeding does not come within the scope of Title VII because it isnot a medical condition of pregnancy and also because it is perceivedas a form of childcare. As with the Barrash decision, other courtshave adopted this precedent with approval.99

Perhaps most disturbing, while decisions like Barrash, Notter, andWallace gave the abandoned logic of Gilbert00 renewed currency,10 1 amore recent decision, Martinez v. NBC Inc.,1°2 went one step furtherand relied explicitly on Gilbert. In Martinez, the plaintiff was allowedto use an empty room at her office to pump breast milk. However,Martinez claimed that this activity led to discrimination in the form ofdisparate treatment by her supervisor' 03 and a hostile environment at

96 The court stated: "[W]e find further guidance in the case of Barrash v. Bowen, ...[which] noted that for purposes of the Pregnancy Discrimination Act, 'pregnancy and re-lated conditions must be treated as illnesses only when incapacitating."' Wallace, 789 F.Supp. at 870 (citation omitted).

97 Wallace, 1991 WL 270823, at *1.98 Wallace, 789 F. Supp at 870.99 For example, in Fejes v. Gilpin Ventures Inc., the district court of Colorado, noting

that no Tenth Circuit decision addressed the issue, cited Barrash and Wallace to support itsholding that, "[based on the language of the PDA, its legislative history, and decisionsfrom the other courts interpreting the Act .... breast-feeding or childrearing are not condi-tions within the scope of the PDA." 960 F. Supp. at 1491; see also Martinez v. NBC Inc., 49F. Supp. 2d 305, 309-10 (S.D.N.Y. 1999) (citing Wallace, Fejes, and McNill for propositionthat breastfeeding is not covered by Title VII); Moawad v. Rx Place, No. 95 CV 5243(NG),1999 WL 342759, at *5 (E.D.N.Y. May 27, 1999) (citing McNill, which relied on Wallace,for proposition that women claiming conditions such as breastfeeding "cannot raise a claimunder the PDA"); McNill, 950 F. Supp. at 570-71 (S.D.N.Y. 1996) (citing Wallace and dis-missing plaintiff's PDA claim on summary judgment); Barnes v. Hewlett-Packard Co., 846F. Supp. 442, 444-45 (D. Md. 1994) (quoting Wallace extensively and analogizing case at

'bar to Wallace analysis of breastfeeding as childcare).100 See supra notes 68-71 and accompanying text (discussing rejection of Gilbert ratio-

nale and holding).101 At least one commentator has argued that this "most unfortunate" persistence of the

"Gilbert doctrine" demonstrates the need to move beyond the civil rights paradigm in or-der to accommodate breastfeeding women in the workforce. Reiter, supra note 21, at 6.

102 49 F. Supp. 2d 305 (S.D.N.Y. 1999).103 See id. at 311 (claiming unfair treatment by supervisor, demotion, and onerous

schedule changes in response to her breast-pumping activity).


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work. 0 4 In response, the court failed completely to acknowledge thePDA and its impact on Title VII analysis. Rather, the court citedGilbert for the proposition that, "[t]he drawing of distinctions amongpersons of one gender on the basis of criteria that are immaterial tothe other, while in given cases perhaps deplorable, is not the sort ofbehavior covered by Title VJI."05

With this statement, the District Court for the Southern Districtof New York indicated that Gilbert still provided the relevant analysisfor Title VII sex discrimination claims and that, accordingly,breastfeeding-based discrimination is not sex discrimination under Ti-tle VII. This is a dangerous precedent. 0 6 First, it ignores two well-established bases for claiming sex discrimination under Title VII: dif-ferential treatment and harassment directed at gender specific condi-tions.10 7 Second, it suggests that courts confronting a novel claim ofsex discrimination may disregard the PDA's clarification of Tile VIIand singularly rely on the logic of Gilbert.

2. Conflating Discrimination with Accommodation

Courts further have failed to recognize that breastfeeding-baseddiscrimination is sex discrimination under Title VII by categorizingclaims brought in these cases as requests for accommodation. 103 Inrefraining a claim of discrimination as a request for accommodation,

104 See supra note 14 and accompanying text (citing plaintiff's brief and court's recita-tion of facts in Martinez regarding allegations that male employees made offensive andharassing comments while standing outside room where Martinez pumped milk).

105 Martinez, 49 F. Supp. 2d at 309. Notably, Wallace also directly cited and relied onthe logic of Gilbert. However, the court at least recognized the enactment of the PDA asaltering Title VII sex discrimination law, even if it ultimately failed to see how that appliedto the breastfeeding-based claims at bar. See supra notes 95-99 and accompanying text(discussing Wallace analysis of PDA). Martinez is yet more disturbing because it fails tocite or mention the PDA, let alone attempt to reject its applicability to the plaintiff'sclaims.

106 There is reason to believe that Martinez could be followed widely given the dearth ofcases on this issue and the widespread adoption of the Wallace reasoning, which also reliedon Gilbert. See supra notes 99-100.

107 See supra notes 50-51 (discussing disparate treatment and sexual harassment as twoforms of discrimination in violation of Title VII). Although it is true that singular andisolated incidents of sexual harassment cannot generally sustain a claim of sex discrimina-tion, Johnson, supra note 51, Supp. § 4.5, the Martinez court did not reject the claim be-cause it failed to show an abusive or hostile environment. Rather, it rejected her claimbecause, as the court concluded, it alleged "a work environment hostile to breast pumping,not a work environment that subjected women to treatment less favorable than was metedout to men." Martinez, 49 F. Supp. 2d at 311. Thus, the court found that the subject, notthe extent, of hostile treatment placed Martinez's claim beyond Title VII relief.

108 See Wallace v. Pyro Mining Co., 789 F. Supp. 867, 870 (W.D. Ky. 1990) ("Nothing inthe Pregnancy Discrimination Act, or Title VII, obliges employers to accommodate thechild-care concerns of breast-feeding female workers by providing additional breast-feed-ing leave not available to male workers."), aff'd mem., 951 F.2d 351 (6th Cir. 1991); see


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courts evidence their assumption that plaintiffs are asking for morethan equal treatment-that they are asking employers to accommo-date breastfeeding women's special needs by providing extrabenefits.'0 9

This distinction between accommodation and discrimination canbe extremely fine.110 For example, if a company provides a strict one-month limit for personal leave per year, it would be an accommoda-tion to provide a breastfeeding employee a second month of personalleave that year. However, if the company refused to grant a femaleemployee her unused month of personal leave to stay home andbreastfeed, that likely would raise an issue of disparate treatment,rather than a refusal to accommodate. 1 ' Unfortunately, the courts

also Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491-92 (D. Colo. 1997) (quotingWallace); McNill v. N.Y. City Dep't of Corr., 950 F. Supp. 564,571 (S.D.N.Y. 1996) (same).

109 See Fejes, 960 F. Supp. at 1492 (discussing whether PDA requires accommodation ofwoman's breastfeeding schedule); McNill, 950 F. Supp. at 571 (quoting Wallace for pro-position that employers need not accommodate women with breastfeeding leave because itis not available to men); Wallace, 789 F. Supp. at 870 (holding that PDA does not make itillegal for employers to deny discretionary leave that would accommodate employee'sbreastfeeding schedule). But cf. O'Hara v. Mt. Vernon Bd. of Educ., 16 F. Supp. 2d 868,885 (S.D. Ohio 1998) (noting in dicta that EEOC guidelines suggest employer should grantleave for childcare purposes on same basis as leave for other nonmedical reasons (citingBarnes v. Hewlett-Packard Co., 846 F. Supp. 442, 444 (D. Md. 1994))).

Although a thorough discussion of whether the PDA does, or can, require accommo-dation as necessary to prevent discrimination is beyond the scope of this Note, commenta-tors generally have agreed that current Title VII analysis does not require accommodation.See Reiter, supra note 21, at 3-4 (arguing that individual rights model, as exemplified byTitle VII, is insufficient for accommodating biologically unique circumstances of womenworkers); D'Andra Millsap, Comment, Reasonable Accommodation of Pregnancy in theWorkplace, 32 Hous. L. Rev. 1411, 1417 (1996) (explaining that "PDA does not grant apregnant employee the affirmative power to demand accommodation" but rather is nega-tive right to be treated equally with similarly situated workers); cf. Shdaimah, supra note25, at 424-25 (explaining that Title VII was designed to remove barriers to equality, notfavor groups, and that there is "fear that a policy which recognizes and accommodatesdifference can be dangerous ground"). Contra Candace Saari Kovacic-Fleischer, LitigatingAgainst Employment Penalties for Pregnancy, Breastfeeding, and Childcare, 44 Viii. L.Rev. 355, 356-58 (1999) (outlining argument that Title VII, as amended by PDA, doesrequire accommodation in order to prevent discrimination).

110 Congress, nonetheless, indicated its awareness of this line. For example, in its report,the Senate clarified that

the bill does not require employers to treat pregnant women in any particularmanner with respect to hiring, permitting them to continue working, providingsick leave, furnishing medical and hospital benefits, providing disability bene-fits, or any other matter. The bill would simply require that pregnant womenbe treated the same as other employees on the basis of their ability or inabilityto work.

S. Rep. No. 95-331, at 4 (1977).111 See id.


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relying on the accommodation framework have failed to make suchdistinctions." 2

The confusion between accommodation and discrimination infactual analysis has created a serious problem for the ensuing legalanalysis. For example, in Fejes v. Gilpin Ventures, Inc.,113 the courtconstrued the breastfeeding-based portion of the sex discriminationclaim as challenging the denial of a part-time schedule to accommo-date the breastfeeding employee." 4 Given the facts reported, how-ever, the claim also raised the question of whether, after taking timeoff for breastfeeding, Fejes was treated differently from other employ-ees-a classic disparate treatment claim.115 Despite these two differ-ent aspects of the claim, the bulk of the court's consideration ofpregnancy discrimination focused on whether the PDA requires ac-commodation of a woman's breastfeeding schedule.116 This accom-

112 For instance, at one point in its discussion, the Wallace court identified specific claimsand facts that could be interpreted as indicating the employer's refusal to accommodatethe employee. It described the plaintiff's claim of sex discrimination as arising from theemployer's refusal to grant plaintiff discretionary personal leave for breastfeeding.Wallace, 789 F. Supp. at 868-69. However, in holding that the PDA did not apply, the courtdid not rely on the fact that supplemental leave was "discretionary." Rather, the courtstated that even when additional leave, as requested by Wallace, was a "condition of em-ployment," the employer is entitled to a blanket policy prohibiting personal leave forbreastfeeding. Id. at 869. Thus, under the Wallace court interpretation of Title VII, even ifsupplemental leave is a term of employment under the company policy, if it is requestedfor breastfeeding, it becomes an "accommodation."

113 960 F. Supp. 1487 (D. Colo. 1997).

114 Id. at 1491.115 The plaintiff, a casino worker, and her employer initially set up a two-day workweek

while she was establishing her breastfeeding schedule. However, after a switch in supervi-sors, she suddenly was issued a letter stating she had been self-terminated for failing toshow up for work. After discussing the previous arrangement with her new supervisor,they agreed that she would return to a full-time schedule. Shortly after this agreement,Fejes realized her gaming license was about to expire. Fejes and her employer agreed thatshe would begin work full-time as soon as the new license arrived. Yet once again, she wasinformed that she was terminated, this time because her employer could not hold the posi-tion open until her return. Id. at 1490-91. Despite this explanation, Feles alleged thatother employees with expired licenses were allowed to work in nongaming positions untilthe license renewal arrived. Id. at 1494.

116 See id. at 1491-92. In comparison, the analysis of Fejes's other general sex discrimi-nation claims looked more directly at the issue of discriminatory treatment. See id. at1492-93. This separation exemplifies the tendency of courts to conceptualize pregnancydiscrimination as something different from sex discrimination. See id. at 1491 (referring to"gender and pregnancy prongs of [plaintiff's] Title VII claim"); see also O'Hara v. Mt.Vernon Bd. of Educ., 16 F. Supp. 2d 868, 885 (S.D. Ohio 1998) ("As a result of the PDA,there are now, as one court has referred to it, two prongs of sex discrimination, 'the genderand pregnancy prongs of... Title VII."' (quoting Fejes, 960 F. Supp. at 1491)). In contrast,as the legislative history of Title VII demonstrates, such separation of pregnancy and sexdiscrimination was not intended. See supra notes 74-80 and accompanying text (describingcongressional intent to clarify pregnancy discrimination as oneform of sex discrimination).


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modation discussion led the court to its broader holding thatbreastfeeding simply was not within the meaning of the PDA.117

The Fejes example demonstrates that, in form, the accommoda-tion framework is somewhat different from the medical conditions orchildcare arguments. It does not insist necessarily that breastfeedingis beyond the definition of sex.118 Rather, it maintains that employers'actions or policies toward breastfeeding employees are beyond themeaning of discrimination under Title VII.119 In substance, however,the "accommodation" analysis is similar to the medical condition orchildcare analysis-it is yet another way of placing breastfeeding-based sex discrimination outside the scope of Title VII's proscrip-tions.120 With such broad holdings, these decisions contribute to a perse rule that breastfeeding-based sex discrimination is never more thana refusal to accommodate.

117 See Fejes, 960 F. Supp. at 1492 (moving from discussion of breastfeeding as requiringaccommodation to conclusion that, "as a matter of law," plaintiff could not establish primafade case of pregnancy discrimination when based on breastfeeding status). The same typeof blurring between accommodation and discrimination issues was seen in Wallace. Theplaintiff, after completing her maternity leave, requested an additional six-week personalleave to breastfeed. The employer decided not to grant this leave, and, when Wallace didnot promptly return to work, she was terminated. Wallace, 789 F. Supp. at 868. In decidingthis case, the court seemed to infer a maximum level of benefits required by the PDA,holding that the PDA did not intend to make it illegal for an employer to deny personalleave for the accommodation of childcare concerns such as breastfeeding. Id. at 870. With-out examining the specifics of the company's policy, it is unclear what factors determinedthe granting or withholding of personal leave. However, to hold simply that the PDAnever requires personal leave for breastfeeding is to permit even those companies thatgenerally provide leave for numerous nonmedical reasons to withhold it when requestedfor breastfeeding. This would raise the issue of discriminatory distribution of benefits, notaccommodation. See infra Part III.C.

118 The Fejes court, however, did accept the premise that breastfeeding is beyond thedefinition of sex under Title VII. Fejes, 960 F. Supp. at 1492 ("Also, I conclude that breast-feeding... [is] not [a] medical condition[ ]... within the meaning of the PDA.").

119 While the PDA helped clarify the definition of the terms "because of sex" and "onthe basis of sex," it did not define the term "discrimination," and discrimination is nototherwise defined in Title VII. See 42 U.S.C. § 2000e (1994) (giving definitions of termsfor purposes of Civil Rights Act, but not including "discrimination"). Rather, Title VIIlists the types of practices that, if done in a discriminatory manner, are unlawful. Id.§ 2000e-2 (prohibiting discrimination in hiring, discharge, compensation, and terms, condi-tions, or privileges of employment, and prohibiting segregation or classifications that ad-versely affect employees' status or employment opportunity).

120 The cases that used an accommodation analysis to reject breastfeeding-based claims,supra note 108, also have been cited as support for the more general proposition that plain-tiffs cannot raise breastfeeding-based claims under Title VII, see Martinez v. NBC Inc., 49F. Supp. 2d 305, 309 n.16 (S.D.N.Y. 1999) (citing Fejes and McNill for proposition thatbreastfeeding is not covered by Title VII); Moawad v. Rx Place, No. 95 CV 5248(NG),1999 WL 342759, at *6 (E.D.N.Y. May 27, 1999) (citing McNill for proposition that womenclaiming conditions such as breastfeeding "cannot raise a claim under the PDA").


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3. Precluding Effective Recourse

The revival of Gilbert and conflation of discrimination and ac-commodation by the lower courts have left breastfeeding women suf-fering harassment or disparate treatment with little recourse.Martinez serves as a case in point. The plaintiff in Martinez attemptedto frame her sex discrimination claim within the theory of "sex-plusdiscrimination."'121 Rather than argue that breastfeeding, like preg-nancy, is a condition of sex recognized by Title VII, the plaintiffseemed to argue that breastfeeding was a "plus" to her sex and thatthis specific combination of characteristics subjected her to discrimi-natory treatment.122 The sex-plus discrimination claim was, as thecourt explained, inappropriate in this context because the "plus" wasnot gender-neutral as required under that theory.123 Yet, in light ofthe uniform failure of courts to consider the possibility thatbreastfeeding is protected under the PDA, the plaintiff effectively mayhave been forced into this posture.124 Unfortunately, the court usedthe plaintiff's reliance on the sex-plus theory to ignore the relevanceof the PDA. 25 The court concluded that the plaintiff's "allegations, iftrue, warrant sympathy for her and disapproval for those responsible,

121 Under a sex-plus discrimination theory, discrimination, generally in the form of dis-parate treatment, is based on gender plus a second sex-neutral characteristic that may dis-guise the underlying gender-based discrimination. For example, if married women but notmarried men are discriminated against, when one removes the "plus" of marriage the real-ity is discrimination based on sex alone. See Martinez, 49 F. Supp. 2d at 310 (explainingsex-plus theory and its inapplicability to Martinez's case). For a discussion of the sex-plustheory, see generally Wendi Barish, Comment, "Sex-Plus" Discrimination: A Discussionof Fisher v. Vassar College, 13 Hofstra Lab. I.. 239 (1995); Regina E. Gray, Comment,The Rise and Fall of the "Sex-Plus" Discrimination Theory: An Analysis of Fisher v.Vassar College, 42 How. L.J. 71 (1998).

122 Martinez applied the sex-plus theory to both her claim of disparate treatment,Martinez, 49 F. Supp. 2d at 310 (claiming disparate treatment based on her sex plus secon-dary characteristic of breastfeeding), and her claim of sexual harassment, id. at 311 (assert-ing "'sex-plus' hostile work environment").I2 Under the sex-plus theory, if the second characteristic must be sex-neutral, then

breastfeeding, which is gender-specific, cannot fit within the framework. As explained bythe court in Martinez, "'gender-plus plaintiffs can never be successful if there is no corre-sponding subclass of members of the opposite gender."' Id. at 310 (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1204 (10th Cir. 1997)).

124 Compare Memorandum of Law in Support of Defendants' Motion for SummaryJudgment at 19-21, Martinez (No. 98 Civ. 4842 (LAK)) (citing Wallace, Fejes, McNill, andBarrash, among other cases, to argue that Title VII does not cover breastfeeding), withPlaintiffs Memorandum at 16-18 (relying on sex-plus claim with no specific reliance onPDA or counterargument to breastfeeding cases cited by defendant); see also Martinez, 49F. Supp. 2d at 310 (noting that plaintiff's motion did not dispute court's analysis relying onGilbert and Wallace).

125 The Martinez court never directly cited or discussed the PDA; it only referred to itparenthetically in a footnote citing a case. See Martinez, 49 F. Supp. 2d at 309 n.16 (citingFejes).


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[but] they do not make out a claim within the coverage of thestatute.'

26

Martinez's last-ditch effort to rely on a sex-plus theory indicatesthat courts, and even plaintiffs, still have difficulty conceptualizingbreastfeeding as part and parcel of pregnancy or sex as defined byTitle VII. In the absence of such a construction of Title VII, workingmothers are left without protection against discrimination directed attheir breastfeeding status. Fortunately, with a more faithful interpre-tation of the PDA, courts can put Title VII sex discrimination lawback on track. 2 7

IIIINTERPRETING THE LANGUAGE AND INTENT OF THE PDA

TO PROHIBIT BREASTFEEDING-BASED SEX DISCRIMINATION

Courts interpreting the PDA narrowly are ignoring the impact ofsex discrimination targeted at breastfeeding women. The dismissivetreatment of these claims will tend to increase the tension betweenchildbirth and employment, completely contradicting the goal of thePDA. Fortunately, only a relatively small number of jurisdictions andlower courts have addressed this issue. Thus, legal advocates andjudges must begin considering an alternative analysis.

This Part explores several factors indicating that the decisions ofthe lower courts offer unpersuasive rationales and internally confusedanalyses. Moreover, statutory language and legislative intent stronglysuggest that a sensible and reasoned interpretation of Title VII, asamended by the PDA, requires a broader interpretation than thesecourts have provided.

Am analysis distinct from current court interpretations does notrequire a new understanding of sex discrimination law. Rather, it sim-ply calls on courts to step out of the medical conditions or childcareframework and realize that breastfeeding is a sex-specific conditionthat can be, and is, the basis of sex discrimination. At the same time,courts must take care to distinguish appropriately those claims thatseek accommodation from those that demonstrate discriminatory ac-tions, such as disparate treatment and harassment, toward breastfeed-ing employees.

126 Id. at 311.127 As one commentator has argued, "[b]ecause Congress reversed the reasoning of

Gilbert when it passed the PDA, presumably Congress did not intend to see the reasoningin it reemerge in a similar context." Kovacic-Fleischer, supra note 109, at 381.


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A. Recognizing Sex Discrimination Basedon Nonmedical Conditions of Pregnancy

When Congress amended the language of Title VII with thePDA, it expressly redefined the term sex to "include, but.., not [be]limited to, pregnancy, childbirth, or related medical conditions."'u2Despite the dominant conclusion among courts that breastfeeding, asa nonmedical condition, is not within the scope of the PDA's protec-tions,1 29 breastfeeding need not be conceptualized as a "related medi-cal condition" for protection under sex discrimination law. 130 Theonly plausible reason for requiring all forms of pregnancy discrimina-tion to relate to medical conditions would be if Congress so limitedthe language and purpose of the Act. As this Section will discuss, thelegislative language and congressional intent prove otherwise. Moreo-ver, the Supreme Court's repeated reliance on the legislative historyof the PDA has proven it to be an exceptionally persuasive expressionof Title VII goals.'31

Courts that have decided that breastfeeding is not encompassedwithin the scope of the PDA generally have considered only part ofthe PDA's legislative history.132 Despite the PDA's goal of expandingthe meaning of sex discrimination generally, courts steadfastly have

128 42 U.S.C. § 2000e(k) (1994).129 See supra notes 85-94 and accompanying text (describing development of medical

conditions analysis and citing cases that rely on it).130 See Kovacic-Fleischer, supra note 109, at 380-83 (noting that breastfeeding does not

properly fit within medical "disability" under PDA). Contra Olson, supra note 25, at 302-03 (arguing that breastfeeding should be considered "medical condition" for purposes ofPDA analysis).

131 In the very first PDA case to reach the Supreme Court, the legislative history becamean integral part of the Court's opinion. See Newport News Shipbuilding & Dry Dock Co.v. EEOC, 462 U.S. 669, 678-82 & 678 nn15-20 (1983) (interpreting congressional intent byextensively citing and quoting House Report, Senate Report, floor debates, and hearingson PDA); see also UAW v. Johnson Controls, Inc., 499 U.S. 187, 205-06 (1991) (citingHouse and Senate Reports for proposition that "legislative history confirms what the lan-guage of the PDA compels," that discrimination on mere "capacity" to become pregnant issex discrimination); Cal. Fed. Say. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-90 (1937)(proposing that Court "must examine the PDA's language against the background of itslegislative history and historical context" and citing extensive legislative history).

132 See, e.g., Wallace v. Pyro Mining Co., 789 F. Supp. 867,869 (W.D. Ky. 1990) (consid-ering legislative history, but relying only on legislative debates that addressed PDA goal toensure disability benefits for pregnancy related medical conditions), afrd mem., 951 F.2d351 (6th Cir. 1991); see also Moawad v. Rx Place, No. 95 CV 5243 (NG), 1999 WL 342759,at *6 (E.D.N.Y. May 27, 1999) (discussing congressional intent that employers treat preg-nancy disabilities as all other temporary disabilities, but concluding generally thatbreastfeeding cannot ground "claim" under PDA); Fejes v. Gilpin Ventures, Inc., 960 F.Supp. 1487, 1491-92 (D. Colo. 1997) (citing Wallace analysis of PDA legislative history);McNill v. N.Y. City Dep't of Corr., 950 F. Supp. 564, 570 (S.D.N.Y. 1996) (noting legisla-tive history focusing on coverage of medical conditions and citing Wallace analysis of PDAlegislative history).


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focused on the "medical conditions" aspect of the PDA.133 In so do-ing, these courts disassociate the PDA from the broader sex discrimi-nation law of which it is a part.134

The statutory language of the PDA provides a nonexhaustive listof physiological conditions that may constitute the basis of sex dis-crimination under Title VII. It does not, on its face, exclude addi-tional bases for sex discrimination.1 35 Courts holding that the PDAonly covers medical conditions of pregnancy seem to have ignored thefact that a pregnancy-related medical condition is only one of threeexamples in a nonexhaustive list. This interpretation disregards thelanguage "but not limited to," thereby rendering that languagesuperfluous.

136

133 For example, in Wallace, the only legislative history referenced was the meaning of"related medical conditions" which led the court to conclude that "[n]othing in the Preg-nancy Discrimination Act, or Title VII, obliges employers to accommodate the child-careconcerns of breast-feeding female workers by providing additional breast-feeding leave notavailable to male workers." Wallace, 789 F. Supp. at 870; see also supra note 99 (identify-ing lower courts adopting medical conditions analysis).

134 See supra Part II.B (discussing intent of PDA). Furthermore, if courts are focusingon the medical conditions requirement in hopes of preventing a slippery slope to accom-modation requirements, this concern is not a legitimate reason for restricting the PDA'sprotections. See infra Part III.C (discussing how accommodation analysis is inappropriateframework for applying antidiscrimination law).

135 The clear language of the Act states that discrimination "because of' or "on the basisof sex" is "not limited to, because of or on the basis of pregnancy, childbirth, or relatedmedical conditions." 42 U.S.C. § 2000e(k) (1994) (emphasis added). Applying the doc-trine of ejusdem generis, which instructs that illustrations of a class indicate how exten-sively the act was intended to apply, it becomes evident that these three terms are primary,but not exclusive, illustrations of the definition of sex. See Norman J. Singer, 2A Statutesand Statutory Construction § 47:18, at 288-89 (6th ed. 2000) ("The purpose for defining theclass by illustrative particularizations accompanied by a general catchall reference is todetermine how extensively the act was intended or should reasonably be understood toapply."); see also infra notes 145-46 (citing Supreme Court interpretation of language).

136 See Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998) (quoting Mackey v. Lanier Collec-tion Agency & Serv., Inc., 486 U.S. 825, 837 (1988), for rule that Court is "'hesitant toadopt an interpretation of a congressional enactment which renders superfluous anotherportion of that same law"'). Moreover, breastfeeding would seem to fit well within thedefinition of "sex" since, like the three terms added by the PDA, it is a sex-specific condi-tion. See Singer, supra note 135, § 47:18, at 289 ("When people list a number of particularsand add a general reference like 'and so forth' they mean to include by use of the generalreference... others of like kind."); see also Shdaimah, supra note 25, at 422-23 (suggestingthat breastfeeding as condition specific to women is arguably within meaning of PDA).Alternatively, breastfeeding might be understood as part of "pregnancy" and "childbirth."Under such an interpretation, breastfeeding is not one of the nonenumerated definitions ofsex discrimination, but rather the third phase of the biological continuum that includespregnancy and childbirth. This approach would provide a sensible distinction between thegender-specific aspects of childbirth and the gender-neutral aspects of childrearing. SeeReiter, supra note 21, at 2 (arguing that courts "could, but currently [do] not viewbreastfeeding as the final stage of the pregnancy cycle").


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While the language of the PDA does not exclude breastfeeding orother nonmedical conditions, neither does it explicitly include them.Therefore, a closer analysis of the legislative history is useful in deter-mining congressional intent on this issue.137 While the immediate goalwas to reject Gilbert and to ensure that health benefit plans coveredpregnancy-related medical disabilities, 133 the amendment had other,broader purposes and objectives. As part of Title VII, the PDA wasintended to promote women's participation in the workplace and toovercome stereotypes that emphasized women's family and childcarefunctions over their professional and economic contributions tosociety.139

In keeping with the overarching principles of the PDA, the Sen-ate called on the courts to adopt a broad interpretation of pregnancyand sex discrimination that would "insure that working women areprotected against all forms of employment discrimination based onsex."14 Deriding the Supreme Court's "narrow interpretations of Ti-tle VII," the House Report further declared that the PDA would"eradicate confusion by expressly broadening the definition of sex dis-crimination in Title VII to include pregnancy-based discrimina-tion. 1 41 Both the Senate and House Reports reaffirm that Congress

137 See supra note 131 (describing Supreme Court's reliance on legislative history); seealso Singer, supra note 135, § 48:03, at 422-28 (describing "established practice in Ameri-can legal processes" of considering relevant historical background of enactment as valua-ble tool in determining statutory objective).

1M See supra note 69 and accompanying text (citing Supreme Court description of PDAas "overturning" Gilbert); supra note 76 and accompanying text (noting Supreme Court'srecognition that disability coverage was critical, but not only, concern of PDA).

139 The House Report notes:Although recent attention has been focused on the coverage of disability bene-fits programs, the consequences of other discriminatory employment policieson pregnant women and women in general has historically had a persistent andharmful effect upon their careers. Women are still subject to the stereotypethat all women are marginal workers .... Therefore, the elimination of discrim-ination based on pregnancy in these employment practices in addition to disa-bility and medical benefits will go a long way toward providing equalemployment opportunities for women, the goal of Title VII of the Civil RightsAct of 1964.

HR. Rep. No. 95-948, at 6-7 (1978), reprinted in 1978 U.S.C.Ca.AN. 4749,4754-55; see alsoDiscrimination on the Basis of Pregnancy, 1977: Hearing on S. 995 Before the Subcomm.on Labor of the Senate Comm. on Human Res., 95th Cong. 34 (1977) (statement of EthelWalsh, Vice-Chairman, EEOC) (stating:

[D]espite some thoughts to the contrary, working mothers are seriously at-tached to the labor force .... They are not in the labor force to have a casualflirtation with the market, but to earn income. Discrimination on the basis ofpregnancy makes it difficult for women to remain in the labor force and main-tain the continuity of their family incomes when they have children.).

140 S. Rep. No. 95-331, at 3 (1977) (emphasis added).141 H.R. Rep. No. 95-948, at 4, reprinted in 1978 U.S.C.C.A.N. 4749, 4752.


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neither limited the PDA to a disability framework, nor enacted theamendment solely as a special protection for pregnant women.142 Ifpregnancy disability was the singular concern, Congress could haveenacted a separate pregnancy disability bill, but it did not. Rather,Congress emphasized that pregnancy discrimination is one of manyincarnations of sex discrimination. 143

The emphasis on pregnancy disability in the legislative historyand in the second clause of the PDA144 is best understood as a floorthat Congress established in response to Gilbert, not as the ceiling ofthe PDA.145 Because the Supreme Court had removed pregnancy

142 See supra notes 75-76 (explaining PDA application beyond medical benefits for preg-nancy disability); see also Donaldson v. Am. Banco Corp., 945 F. Supp. 1456, 1464 (D.Colo. 1996) ("If Congress intended to treat pregnancy as a disability only, it would haveenacted the PDA as part of disability legislation. Instead, Congress chose to incorporatethe PDA as part of Title VII, an anti-discrimination statute."). In Donaldson, three femaleemployees were sexually harassed about their breastfeeding and pregnancies upon theirreturn to work. See id. at 1462. Interpreting the PDA broadly within the full context ofTitle VII, the Donaldson court noted that "[i]t would make little sense to prohibit an em-ployer from firing a woman during her pregnancy but permit the employer to terminateher the day after delivery if the reason for termination was that the woman became preg-nant in the first place." Id. at 1464. The court rejected the defendant's claim that the scopeof the PDA was "limited to the policies which impact or treat medical conditions relatingto pregnancy or childbirth less favorably than other disabilities," and refused to dismiss thecase. Id. Despite this analysis, the same court decided Fejes a year later, explicitly ac-cepting the medical conditions standard, at least in the context of benefits discrimination.See supra notes 94, 99 (discussing Fejes case and its reliance on Barrash analysis). Suchinconsistency in the court's analysis further weakens the persuasiveness of Fejes and thosedecisions relying on it.

143 Notably, in subcommittee hearings, Senator Hatch inquired why this particular legis-lation belonged in Title VII instead of as a "special pregnancy bill." Discrimination on theBasis of Pregnancy, 1977: Hearing on S. 995 Before the Subcomm. on Labor of the SenateComm. on Human Res., 95th Cong. 44 (1977). Assistant Attorney General Days, speakingfor the Department of Justice, responded:

Because that piece of legislation [Title VII] represented, in my estimation, adetermination by Congress to open opportunities up to minorities and womenwho had been discriminated against over many generations. It seems to methat pregnancy disability is a most modem example of that type of undue re-striction upon the opportunities for women in employment.

Id.144 Unlike the first clause of the PDA, which defines the terms "because of" or "on the

basis of sex" for general application to all Title VII antidiscrimination provisions, the sec-ond clause explains how the prohibition on discriminatory treatment specifically relates toreceipt of medical benefits. See 42 U.S.C. § 2000e(k) (1994).

145 Cal. Fed. Say. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-85 (1987) (stating:By adding pregnancy to the definition of sex discrimination prohibited by TitleVII, the first clause of the PDA reflects Congress' disapproval of the reasoningin Gilbert. Rather than imposing a limitation on the remedial purpose of thePDA, we believe that the second clause was intended to overrule the holdingin Gilbert and to illustrate how discrimination against pregnancy is to beremedied.

(citation omitted)).


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from the definition of sex discrimination, Congress was forced to in-clude it explicitly. This, however, does not mean that Congress in-tended to exclude other forms of sex discrimination fromprotection. 46 This reasoning has led the Supreme Court to interpretthe PDA to extend to male employees147 and to women who are notyet pregnant, but who have the capacity to become pregnant.1 48

These holdings strongly suggest that it would be well within thebounds of Title VII, as amended by the PDA, to prohibit discrimina-tion against female employees who are breastfeeding as a result ofpregnancy and childbirth.

Congress emphasized the broad interpretations that courts couldattribute to the chosen language. According to the House Report, thePDA was meant to clarify that the protections of Title VII "extend[ ]to the whole range of matters concerning the child-bearing process."149The Senate further explained that the new language defining sex dis-crimination was meant "to include these physiological occurrences pe-culiar to women."1 50 As a matter of common sense, breastfeeding is a"physiological occurrence" within the "whole range of matters" relat-ing to child-bearing.

The express addition of an abortion exemption to the PDA fur-ther indicates that Congress was well aware of the broad scope of thePDA terminology.151 Where it wanted to exempt application of TtleVII to a specific condition arising from pregnancy (abortion), Con-gress did so explicitly. It follows that if Congress wanted to excludethe physiological occurrence of breastfeeding, nonmedical conditions

146 See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669,679 (1983)("[Clongressional discussion focused on the needs of female members of the work forcerather than spouses of male employees. This does not create a 'negative inference' limitingthe scope of the Act to the specific problem that motivated its enactment.").

147 See id. at 684 (holding that it violates Title VII, as amended by PDA, to provide onlylimited pregnancy-related benefits to female spouses of male employees while providingmore extensive coverage to male spouses of female employees).

148 See UAW v. Johnson Controls, Inc., 499 U.S. 187,211 (1991) (holding that Title VII,as amended by PDA, forbids "sex-specific fetal-protection" policy because it discriminatesagainst women for their capacity to become pregnant); see also King v. Peters & Assocs.,No. Civ. A. 98-2455-GTV, 2000 U.S. Dist. LEXIS 1015, at *9-*10 (D. Kan. Jan. 7,2000)(finding that employer's discharge of plaintiff upon learning she "might be pregnant" wassufficient to challenge employer's proffered reason as pretextual).

149 H.R. Rep. No. 95-948, at 5 (1978) (emphasis added), reprinted in 1978 U.S.C.C.A.N.4749, 4753.

150 S. Rep. No. 95-331, at 4 (1977).151 The House Committee on Education and Labor added language specifically to ex-

empt employers from covering abortion because it realized that since "the bill applies to allsituations in which women are 'affected by pregnancy, childbirth, and related medical con-ditions,' its basic language covers decisions by women who chose to terminate theirpregnancies." H.R. Rep. No. 95-948, at 7, reprinted in 1978 U.S.C.CA.N. 4749,4755.


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of pregnancy, or other post-childbirth conditions, it would have doneso in a similarly explicit and straightforward fashion.152 Short of sucha directive, and given the legislative history, it defies the statutory andcongressional intent to read this exclusion into the Act.153

Ultimately, limiting the PDA's scope to medical conditions ofpregnancy ignores its broader goal of promoting the advancement ofwomen in the workplace. 54 Title VII, as amended by the PDA, aimsto prevent all forms of sex discrimination against women, 55 not justdiscrimination against women temporarily "disabled" by preg-nancy.' 56 Given this mandate, courts have no sound basis for estab-lishing a bright line rule that a condition related to pregnancy, such asbreastfeeding, must be a medical condition in order to qualify for pro-tection under the PDA.157

B. Recognizing Breastfeeding as Gender Specific

Along with the medical condition analysis, courts repeatedly havedrawn parallels between breastfeeding and childcare. 158 Unlike themedical condition analysis, the childcare analysis is not a flawed inter-pretation of law, but rather a misrepresentation of reality: It dismissesthe mother's individual condition and uniquely gender-specific roleduring the breastfeeding period.1 59

152 As a matter of statutory interpretation, "the enumeration of exclusions from theoperation of a statute indicates that the statute should apply to all cases not specificallyexcluded." Singer, supra note 135, § 47:23, at 317; see also Cipollone v. Liggett Group,Inc., 505 U.S. 504, 517 (1992) (applying "familiar principle of expressio unius est exchisioalterius" to interpret Cigarette Labeling and Advertising Act of 1965).

153 When interpreting statutory language, the realization of congressional intent alwaysshould remain the primary objective. Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) (ex-plaining Court's objective to "ascertain the congressional intent and give effect to the legis-lative will"). Contra Frank H. Easterbrook, Legal Interpretation and the Power of theJudiciary, 7 Harv. J.L. & Pub. Pol'y 87, 87-94 (1984) (arguing that courts should not at-tempt to decipher legislative intent when interpreting statutes).

154 See supra note 79 and accompanying text.155 See supra notes 78-80 and accompanying text (citing Senate Report).156 See supra notes 141-46 and accompanying text; see also 123 Cong. Rec. 29,385 (1977)

(statement of Sen. Williams) ("This legislation will prohibit not only discrimination in theprovision of disability benefits ... but it will also prohibit discrimination on the basis ofpregnancy or conditions arising out of pregnancy for all employment-related purposes." ).

157 Thus, for example, in Wallace, the court should not have focused on whether theplaintiff's reason for taking leave was based on a "medical condition," see supra notes 95-98, but rather it should have determined whether the plaintiff was denied leave simplybecause she wanted to use it for breastfeeding or for a legitimate nondiscriminatory reasonunder the employer's leave policy.

158 See supra notes 98-99 and accompanying text (citing cases developing and relyingupon childcare analysis).

159 See discussion supra Part I; see also Kovacic-Fleischer, supra note 109, at 380-81(noting that courts often ignore biological reproductive differences between men andwomen).


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Using the childcare analysis, courts have disregarded the physio-logical condition of breastfeeding and the physical impact it has onwomen.16° By equating breastfeeding with gender-neutral childcareactivities, courts fail to view breastfeeding as a stage along the contin-uum of pregnancy and childbirth. This misperception creates seriouslegal barriers for women in the workplace. Relying on the childcareframework, courts can dismiss these types of claims as based on thechild's needs, which Title VII and the PDA are not designed to pro-tect, 61 rather than as based on the female employee's condition.162

The reality of breastfeeding contradicts the rationales and conclu-sions common among the courts. As discussed in Part I, lactation hasmany physical effects on a woman's body, and breastfeeding is a nor-mal and common way to respond to the physical changes resultingfrom pregnancy.1 3 Thus, to harass or discriminate against a femaleemployee because of this condition is to discriminate against herbased on a condition of her pregnancy and a choice specific to hersex.164

The fact that breastfeeding, unlike lactation, is a choice,16s or thatit is a process that benefits the child,166 does not change its gender-specific nature.167 Nor does the "optional" nature of breastfeedingremove it from the purview of Title VIl's proscriptions against sexdiscrimination. Women can, and do, make the choice to become preg-

160 Supra notes 22-28 and accompanying text (detailing physical consequences ofbreastfeeding).

161 The Senate Report indicates that the PDA was not intended to require childcare. S.Rep. No. 95-331, at 4 (1977) ("For example, if a pregnant woman wishes, for reasons of herown, to stay home to prepare for childbirth, or, after the child is born to care for the child,no disability or sick leave benefits need be paid."). However, Congress also emphasizedthat "[e]mployers who provide voluntary unpaid leave of this type may continue to do so,as long as it is done on a nondiscriminatory basis." Id. In contrast, the Family & MedicalLeave Act (FMLA) does require employers to provide leave for childcare purposes, re-gardless of the existing benefit policy. 29 U.S.C. § 2612(a)(1)(A) (1994) (granting twelveworkweeks of leave during any twelve-month period for childcare). The difference be-tween the PDA and the FMIA further illustrates the difference between an antidis-crimination statute and an accommodation statute. See supra Part II.C.2 (discussingdifference between accommodation and antidiscrimination analysis).

16? See supra notes 98-99 and accompanying text for examples of how courts alreadyhave used the childcare framework to dismiss breastfeeding-based claims.

163 See supra notes 25-28 and accompanying text (describing breastfeeding's palliativeeffects on physical discomforts caused by pregnancy and childbirth).

164 See supra Part I (discussing gender-specific consequences of breastfeeding).165 See supra note 21 and text accompanying supra note 24 (discussing ability to stop

lactation).166 Supra notes 30-32 and accompanying text (detailing benefits of feeding with breast

milk to child and society).167 It is self-evident that only the mother can breastfeed or pump breast milk. Although

a father can serve bottled breast milk, it is still the mother that must go through the pro-cess, time, and effort of expelling the milk.


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nant while working. Even if a pregnancy is unintended, or ultimatelyunwanted, women can choose either to terminate 168 or carry to termand give birth. Pregnancy and childbirth simply are not unavoidableconsequences of one's sex. They are "choices," and ones that mostobviously benefit the child. Yet to discriminate against women for de-ciding to become pregnant or to give birth is unquestionably a viola-tion of Title VII.1 69 Simply put, the element of choice, or a resultingbenefit to the child, are not sound foundations for strippingbreastfeeding of protection under Title VII.

By guaranteeing that women will not face employment discrimi-nation based on sex-specific choices, Title VII encourages workingwomen to pursue or continue pregnancies. e70 It only makes sensethen that Title VII also protects working women from discriminationagainst the sex-specific consequences of pregnancy and childbirth. Toaccomplish this goal, courts should recognize that breastfeeding, un-like childcare, is an experience unique to women 17' and one thatshould not serve as an acceptable pretext for sex discrimination.

C. Differentiating Between Discrimination and Accommodation

Another common error in courts' analyses is the conflation of dis-crimination with accommodation, which are two distinct issues. 72

Courts focusing on accommodation have failed to distinguish properly

168 Roe v. Wade, 410 U.S. 113, 153-54 (1973) (holding that women have constitutionallyprotected right to abortion).

169 See UAW v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991) ("Congress made clearthat the decision to become pregnant or to work while being either pregnant or capable ofbecoming pregnant was reserved for each individual woman to make for herself."); see alsosupra Part II.B. But cf. Greenberg, supra note 21, at 229-32 (arguing that PDA is ineffec-tive in removing barriers between motherhood and work because it allows courts to usebiologically restricted definitions of pregnancy to exclude "consequences" of pregnancyfrom protection).

170 See 124 Cong. Rec. 21,442 (1978) (statement of Rep. Tsongas) (stating that bill"would ... put an end to an unrealistic and unfair system that forces women to choosebetween family and career-clearly a function of sex bias in the law"); see also Reiter,supra note 21, at 14 ("In enacting civil rights protections for pregnant women, our societymade the laudable choice to accommodate reproductive difference so as to provide equal-ity of opportunity."); supra notes 78-81 and accompanying text (discussing how PDA wasenacted so that women would not feel need to choose between work or motherhood andcould continue to advance in workforce).

171 See supra notes 163-67 and accompanying text (discussing import of gender-specificnature of breastfeeding); cf. Barnes v. Hewlett-Packard Co., 846 F. Supp. 442, 445 (D. Md.1994) (noting that "[t]here is, in sum, a point at which pregnancy and immediate post-partum requirements-clearly gender-based in nature-end and gender-neutral child careactivities begin," but also citing Barrash for proposition that breastfeeding is not medicalcondition related to pregnancy under PDA).

172 See supra notes 108-11 and accompanying text for a discussion of the difference be-tween discrimination and accommodation in the context of the PDA.


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facts and rationales specific to requests for special accommodationfrom those that allege discrimination. As a result, these decisions gen-erally hold that plaintiffs cannot sustain a claim of breastfeeding-based sex discrimination173

Narrowly-tailored and fact-specific case analysis could overcomethe confusion created by the accommodation rationale. For example,if a female employee claims she is not receiving benefits on the sameterms as other employees-either because she is a woman, pregnant,or breastfeeding-the question is not whether Title VII requires thosebenefits in the first instance. The proper inquiry is whether, once in-cluded in a benefits plan, the personal leave policy is distributedequally as between the plaintiff and other workers with nonmedicalreasons for taking leave.174 Upon recognizing this distinction, courtscould not peremptorily proclaim that the PDA does not require em-ployers to provide accommodation. Rather, a court would determinewhether an employer has withheld generally available benefits frombreastfeeding employees who are similar to nonbreastfeeding employ-ees in their ability or inability to work, and so limit its holding.175

Although an individual analysis of the company policy in eachcase may seem burdensome, the PDA specifically disclaimed any in-

173 See supra Part I.C.2 (discussing and citing case holdings that treat breastfeeding-based sex discrimination claims as accommodation requests and therefore reject them).

174 See supra note 161 (citing Senate Report as evidence of congressional intent thatPDA require equal distribution of benefits, even if not requiring accommodation). At leastone court seems to have indicated a minimal recognition of the distinction between accom-modation and discrimination. In O'Hara v. Mt. Vernon Bd. of Educ, 16 F. Supp. 2d 868(S.D. Ohio 1998), the district court referred to the principles set forth by the EEOC, sug-gesting that, under Title VII, "leave for childcare purposes be granted on the same basis asleave which is granted to employees for other non-medical reasons." Id. at 885 (citingBarnes, 846 F. Supp. at 444). Thus, the court recognized that even if time off for childcareis an "accommodation," employers should not withhold that accommodation when re-quested by a mother once similar accommodations are offered to other employees for simi-lar purposes. However, in O'Hara, since the plaintiff "ha[d] made no claim ofdiscrimination based on her pregnancy sick leave or the PDA," id., the court had no oppor-tunity to discuss, specifically, the scope of the PDA's coverage, see id. at 885-86 (explainingthat plaintiff did not raise claim of discriminatory treatment based on her pregnancy butclaimed that more stringent rules for parental leave than for other types of leave dispa-rately impacted women employees generally).

175 See 42 U.S.C § 2000e(k) (1994) (requiring that "women affected by pregnancy, child-birth, or related medical conditions shall be treated the same for all employment-relatedpurposes ... as other persons not so affected but similar in their ability or inability towork"). For example, an employer's personal leave policy may be a discretionary policycircumscribed by any number of considerations, or one in which employees have a limited(or unlimited) number of personal days to use as they choose. In the latter case, it wouldbe discriminatory to forbid an employee to use her personal days for breastfeeding. In theformer, specific facts showing common practices or standard reasons for granting discre-tionary leave would reveal whether the plaintiff presented sufficient evidence of a discrimi-natory denial of leave.


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tent to establish a general standard for medical or maternity benefits,instead leaving the decision to employers.176 If the employer policy inquestion is unusually complex, understandably, courts may have diffi-culty analyzing the pregnancy discrimination claim.1 77 But whencourts do fail to parse adequately the facts and claims in breastfeedingcases, they tend to reframe the allegation of discrimination as a re-quest for accommodation. 178 Ultimately, whether a company mustgrant personal leave for breastfeeding women will be determinedlargely by the rules of that company's medical and personal leave poli-cies, not by a court's assessment of what justifies such leave. 179

CONCLUSION

It is long past the time when Gilbert officially was put to rest.The PDA clarified the congressionally intended meaning of "sex"under Title VII, and in so doing overruled Gilbert. There is no needfor the statute to be revised every time courts confront a more subtleexpression of sex discrimination. 80 Judges and advocates should not

176 See H.R. Rep. No. 95-948, at 4 (1978) (citing House position on PDA's impact onemployer distribution of medical benefits), reprinted in 1978 U.S.C.C.A.N. 4749, 4752; S.Rep. No. 95-331, at 5 (1977) (citing Senate position on same); infra note 179 (citing EEOCinterpretation of medical disability requirements).

177 For example, in McNill v. New York City Department of Correction, 950 F. Supp.564 (S.D.N.Y. 1996), the court faced this very problem. The employer offered a very elab-orate and specific policy regarding personal absences, medical leaves, and discretionarybenefits. Under a collective bargaining agreement, employees were entitled to "unlimitedpaid sick leave." Id. at 567. "To prevent abuse of this policy, employees who reportfed]sick for any reason except hospitalization, on twelve or more work days within a twelvemonth period" risked the loss of discretionary benefits. Id. Discretionary benefits in-cluded assignment of a steady tour, access to voluntary overtime, promotions, and secon-dary employment. Id. In addition, absences that "occur[red] when an officer [was]pregnant or as a result of the condition of being pregnant" along with the six week mater-nity leave were not counted toward the employee's absentee status. Id. Rather than rely-ing on the terms of this policy to determine if the plaintiff was treated unfairly after takingexcessive time off to breastfeed, the court became absorbed with an analysis of whether thePDA protected the plaintiff's right to unlimited absence, without loss of discretionary ben-efits, due to pregnancy. See id. at 569.

178 See supra note 112 (describing Wallace case).179 The EEOC advises this approach in a sample Q & A in its regulatory guidelines:

Q. Must an employer grant leave to a female employee for childcare purposesafter she is medically able to return to work following leave necessitated bypregnancy, childbirth or related medical conditions?

A.... [O]rdinary title VII principles would require that leave for child-care purposes be granted on the same basis as leave which is granted to em-ployees for other non-medical reasons.

Questions and Answers on the Pregnancy Discrimination Act, 29 C.F.R. § 1604, app.18(A) (2000).

180 The spate of cases removing breastfeeding from PDA protections already has ledRepresentative Carolyn Maloney to introduce a bill amending the PDA to clarify that itwas intended to prevent discrimination against breastfeeding employees. See Pregnancy


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wait for, or force, Congress to make another legislative amendment.181

By invoking the expansive language and the well-documented intentbehind the PDA, courts will have a strong legal foundation for prohib-iting sex discrimination based on a woman's breastfeeding status. In-cluding breastfeeding within the current definition of pregnancy andsex under Title VII is critical for preserving the integrity of employ-ment antidiscrimination law and for ensuring the continued advance-ment of women in our workforce and public life.

Discrimination Act Amendments of 2000, H.R. 3861, 106th Cong. §§ 2(a)(9), 3 (2000)(stating that courts improperly have excluded breastfeeding women from PDA and ex-pressly adding word "lactation" after "childbirth" in definition of sex), WL 1999 Cong USHR 3861. The bill was pending in committee when the 106th Congress adjourned.Thomas: Legislative Information on the Internet, http://thomas.loc.govibss!dl06query.html.

181 Some courts have stated their belief that a congressional amendment would be nec-essary to include breastfeeding within the scope of the PDA. See Martinez v. NBC Inc., 49F. Supp. 2d 305, 311 (S.D.N.Y. 1999) ("[I]f breast pumping is to be afforded protectedstatus, it is Congress alone that may do so."); Wallace v. Pyro Mining Co., 789 F. Supp. 867,870 (W.D. Ky. 1990) (reasoning that "[ilt is not the province of this court to add to thelegislation by judicial fiat" because if Congress wanted breastfeeding to be covered byPDA "it could have included [it] in the plain language of the statutes"), affd mem., 951F.2d 351 (6th Cir. 1991). These statements are highly reminiscent of the Gilbert Court'sconclusion that "[w]hen Congress makes it unlawful for an employer to 'discrimiiate...because of ... sex...' without further explanation of its meaning, we should not readilyinfer that it meant something different from what the concept of discrimination has tradi-tionally meant." Gen. Elec. Co. v. Gilbert, 429 U.S. 125,145 (1976). However, when Con-gress responded with the PDA, it emphasized that the Court was misled in this assumption.It stated that the new amendment would "reflect no new legislative mandate of the Con-gress .... If, however, Congress were not to clarify its original intent, and the SupremeCourt's interpretations of Title VII were allowed to stand, Congress would yield to anintolerable potential trend in employment practices." HR. Rep. No. 95-948, at 3-4 (em-phasis added), reprinted in 1978 U.S.C.C.A.N. 4749, 4751-52.


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